Ujjal Bhuyan, J.
Heard Mr. BD Das, learned Senior Counsel assisted by Mr. HK Sarma, learned counsel for the petitioner and Mr. SC Keyal, learned Assistant Solicitor General of India for the respondents.
2. Though the prayer made in the writ petition has undergone change during the pendency of the writ petition before this Court, at the time of final hearing, Mr. Das, learned Senior Counsel for the petitioner has confined his prayer to payment of compensation only.
3. A brief recital of the facts would be in order. Originally, the writ petition was filed with the following prayer:-
"In the premises aforesaid, it is most respectfully prayed that the Hon'ble Court may be pleased to admit this application, call for the records and issue a rule calling upon the respondents to show cause as to why the petitioner shall not be provided with all the items taken by the officials of the respondent No. 2 and 3 as mentioned in his representation dated 23.02.2012 addressed to the respondent No. 2 with copy to the concerned person (at Annexure-9) immediately and why the non-bailable warrant of arrest against Havildar Sandeep Thapa shall not be executed immediately as per the order dated 05.01.2012 passed by the learned Chief Judicial Magistrate, Jorhat in Jorhat PS Case No. 922/11 and why the respondent No. 2 and 3 shall not be directed to direct Havildar Sandeep Thapa to appear before the Officer-in-Charge, Jorhat PS in connection with the Jorhat PS Case No. 922/11 and why the investigation of the Jorhat PS Case No. 922/11 shall not be completed immediately and why compensation of Rs. 10.00 lakh's shall not be provided to the petitioner for their illegal entry to the petitioner's house at 1.00 am on 22.12.11 and taking away various items by forcefully breaking the locks of the petitioner's steel almirah and after return of the Rule and upon such cause or causes being shown and upon hearing the parties be pleased to make the Rule absolute giving full and complete relief to the petitioner and/or pass such further or other order or orders as this Hon'ble Court may deem fit and proper."
4. The above prayer was made in the context of the grievance expressed by the petitioner in the writ petition.
5. According to the petitioner, he is a contractor and has been executing contractual works in Military Engineering Services, besides in other establishments. On 20.12.2011, he was at Guwahati in connection with his business works. Be it stated that residence of the petitioner is at Rowriah Tiniali near Jorhat town in the district of Jorhat. On 21.12.2011 at about 01.00 am, some army personnel came from Dimapur in three vehicles, one Indica Car and two Maruti Gypsies and forcibly entered into his house at Rowriah Tiniali. They were in army uniform carrying weapons. One lady officer was there in the group comprising of 7/8 personnel. At that time, his wife, two sons (aged about 21 and 18 years) and daughter (aged about 12 years) were present at home. It is stated that the army personnel had covered the eyes of the inmates and took away the following:-
i) Cash amounting to Rs. 1.5 lakh's;
ii) Gold ornaments worth Rs. 6.5 lakh's;
iii) One laptop;
iv) One .32 pistol having valid licence;
v) Four numbers of Mobile handsets with SIM cards;
vi) Passport, Driving Licence, PAN Card, one cheque book of Indian Bank, five copies of photograph with Chief Minister and local MLA, LICI Gold Club Membership Card etc.
6. Petitioner lodged first information before the Officer In-charge of Rowriah Police Station on 21.12.2011; on the basis of which Jorhat PS Case No. 922/11, under Sections 395/397 IPC was registered.
7. On 30.12.2011, police had informed the petitioner over telephone regarding handing over of some of the items by military personnel. By order dated 25.01.2012, Chief Judicial Magistrate, Jorhat granted temporary zimma of the articles on execution of bond.
8. According to the petitioner, the cash amount and the jewellery were not returned; so also the passbook, bags etc. He further stated that his two Mobile handsets were also not returned.
9. Prior to passing of order for zimma, Chief Judicial Magistrate, Jorhat had passed an order dated 05.01.2012 in GR No. 1982/2011 arising out of Jorhat PS Case No. 922/2011, issuing non-bailable warrant of arrest against Havildar Sandeep Thapa but, neither the warrant was executed nor was he handed over to the police. Be it stated that the Investigating Officer had prayed for issuance of warrant of arrest against Havildar Sandeep Thapa attached to the 3 Core Intelligence Unit, Dimapur as he was found involved in the case, particularly using the mobile phones of the petitioner. Representation filed by the petitioner before respondent No. 2 on 23.02.2012 for return of cash and jewellery along with other items did not yield the desired result.
10. It is in the above context that the present writ petition came to be filed seeking the reliefs, as indicated above.
11. Notice in this case was issued on 02.05.2012 with an interim direction that respondents should not take recourse to any action against the petitioner except in accordance with law.
12. On 09.11.2012, Mr. R. Sarma, learned Assistant Solicitor General had apprised the Court that it was decided to subject Captain Rubina Kaur Keer, Havildar Bhupen Hatimata, Havildar Sandeep Thapa and Sepoy (Mechanical Transport) Jibon Neog to Court Martial under the Army Act, 1950 and the Rules framed thereunder as contemplated under section 475 of the Code of Criminal Procedure, 1973 (CrPC), read with section 125 of the Army Act. In this connection, a petition was filed by Major Dipak Vaishnav before the Chief Judicial Magistrate, Jorhat; on the basis of which, an order was passed by the Chief Judicial Magistrate on 19.10.2012 directing that statement of offence and other relevant documents be furnished to Major Dipak Vaishnav. The Assistant Solicitor General further apprised the Court that parallely, a Court of Enquiry under the Army Act and the Rules framed thereunder was also initiated to enquire into the allegations made by the writ petitioner which was in progress.
12.A. Mr. PS. Deka, learned Government Advocate, Assam also informed the Court that investigation into Jorhat PS Case No. 922/2011 was nearing completion and that evidence was collected against the 15 personnel from the army, including against the four against whom Army had decided to initiate Court Martial. On due consideration, this Court passed the following order on 09.11.2012:-
"Be that as it may, as it is apparent from the submission made on behalf of the Union-respondents before us that for the present, they contemplate to subject only the afore named four army personnel to Court-martial, we are of the view having regard to the prescription of Section 475 Cr.P.C., 1973 that while the order dated 19.10.2012 passed by the learned Chief Judicial Magistrate, Jorhat is prima facie sustainable vis--vis this four army personnel, the same per se ought not to inhibit the completion of the investigation in the above police case and the continuance of the proceedings before the above Court qua the other persons.
In the above view of the matter, in terms of the order dated 19.10.2012, the Union authorities herein may as contemplated proceed with the Court martial as envisaged in Section 475 Cr.P.C., 1973 and 125 of the Act against the four army personnel referred to here in above. The Jorhat Police however would continue with the investigation of Jorhat P.S. Case No. 922/2011 under Section 395/397 IPC and complete the same at the earliest. The proceedings of this case before the learned Chief Judicial Magistrate, Jorhat would continue qua the remaining persons against whom, as on date, according to the police incriminating evidence has been obtained in course of the investigation, the pendency of the Court of Enquiry against them notwithstanding. The statements of the writ petitioner and his family members as required in the Court of Enquiry would be recorded at the Jorhat Police Station in presence of an advocate of their choice. The date would be as fixed by the Union authorities with due advance notice to them. The writ petitioner and the family members would cooperate with the process."
12.B. Court also observed that Jorhat police would unfailingly complete the investigation and the army authorities would endeavour to complete their proceedings expeditiously.
13. Respondent Nos. 1 and 2 had filed an application for modification/vacation of the aforesaid order dated 09.11.2012, which was registered as MC No. 3557/2012. Prayer was made to allow the army authorities to proceed with the matter under the Army Act and the Rules framed thereunder and to restrain the parallel investigation by the police in connection with Jorhat PS Case No. 922/2011. On 29.01.2013, this Court took the view that it was incumbent on the part of the respondents to apprise the Court about the result of the inquiry against the 15 personnel whose involvement came to light in the course of investigation. On the next date, i.e., on 14.02.2013, respondents were granted time to proceed with the recording of Summary of Evidence which had already commenced in the meanwhile and thereafter to take necessary action on the basis of what transpired from the recording of the Summary of Evidence. With the above observation, MC No. 3557/2012 was closed.
14. It appears that respondents had completed the Summary of Evidence and charge sheeted four persons for summary trial. This was informed to the Court by the learned Assistant Solicitor General of India on 16.09.2013 where after, the following order was passed:
"In compliance of the order of this Court dated 18.7.2013, the learned Asstt. S.G.I, has now informed this Court about the status of the enquiry conducted by the respondents against the army personnel involved in the incident in question. As per the status report, it appears that the respondents have completed the Summary of Evidence and charge sheeted the following persons for Summary Trial-
"(a) The following persons be tried by Summary Trial/Court Martial-
i) SS-43767A Captain Rubina Kaur Keer.
ii) No. 5047654K Havildar Sandeep Thapa
iii) No. 14640874K Havildar Bhupen Hatimata.
iv) No. 14827908X Sepoy (Mechanical Transport) Jibon Neog.
b) Administrative/Departmental action is also being taken against-
i) JC-811233H Subedar Balbir Singh
ii) JC-811361A Naib Subedar Gagan Bihari Sahu
However, due to lack of evidence, the charge against the following persons have been dismissed
i) No. 14925524Y Havildar Om Prakash
ii) No. 15146010K Havildar Raghu V.
iii) No. 9421838X Naik Madan Raj
iv) No. 3400374ivi Naik Sarwan Singh
v) No. 14807431M Naik (Mechanical Transport) A Manna.
vi) No. 3405236P Lance Naik Gurdev Singh
vii) No. 3409807A Sepoy Satnam Singh
viii) No. 2103201L Sepoy NC Nath
xi) No. 14818982X Sepoy (Mechanical Transport) Ranjan Singh.
The case will be listed again on 5.11.2013.
The learned ASGI will submit the status of the Court Martial/Summary Trial against the four (4) persons as well as the administrative action taken against the two (2) persons named hereunder above on the returnable date."
15. Thereafter proceedings of the Court of Enquiry were submitted before the Court, which would be adverted to at a later stage of this judgment.
16. On leave being granted, petitioner filed a consolidated writ petition enclosing therewith the findings of the Court of Enquiry. In view of the subsequent developments, the following prayer was made in the writ petition:-
"In the premises aforesaid, it is most respectfully prayed that the Hon'ble Court may be pleased to admit this application, call for the records and issue a Rule calling upon the respondents to show cause as to why the Inquiry and opinion (at Annexure 12 and 13 to this petition) shall not be set aside and quashed and why the Inquiry relating to the petitioner's complain as reflected in Jorhat PS Case No. 922/11, under section 395/379 IPC shall not be inquired by the CBI or any other agency and why the petitioner should not be provided compensation of Rs. 10.00 lakh's for illegal raid in his house and taking away valuable goods from his house and after return of the Rule and upon such cause or causes being shown and upon hearing the parties be pleased to make the Rule absolute giving full and complete relief to the petitioner and/or pass such further or other order or orders as this Hon'ble Court may deem fit and proper."
17. Though petitioner had amended the relief sought for by seeking quashing of the findings of the Court of Enquiry and for an inquiry by the Central Bureau of Investigation (CBI) in Jorhat PS Case No. 922/2011, besides payment of compensation, in the course of hearing, Mr. Das, learned Senior Counsel confined his submissions only to the prayer for compensation.
18. At this stage, we may briefly refer to the affidavits exchanged by the parties.
19. An affidavit-in-opposition was filed on behalf of respondent No. 2 by Major Dipak Vaishnav on 24.05.2012. It was stated that in the first week of November 2011, there was intelligence input regarding involvement of the petitioner in nefarious activities. It was stated that petitioner, a Military Engineering Services contractor had links with ULFA (Anti Talks); rather, he was an active link man of ULFA (Anti Talks) in upper Assam. His involvement in various illegal activities, including providing shelter to militants came to light. According to intelligence input, three ULFA (Anti Talks) leaders, including Bijoy Das and Pulin Buragohain were taking shelter in his residence en route to Mon in the State of Nagaland. A discreet surveillance was conducted over the residence of the petitioner from 14.12.2011 to 18.12.2011; in the course of which, presence of 3/4 middle aged males, not being members of the petitioner's family, was confirmed who had come from Majuli and were on their way to Mon. Following final reconnaissance carried out on 18.12.2011 and on confirmation of intelligence input, an operation was planned to nab the petitioner along with three ULFA leaders on 19.12.2011 but, for other reasons, the operation was postponed to 20.12.2011. The operation was then launched on 20.12.2011, details of which have been mentioned in the affidavit. The army team comprised of 1 Officer, 2 Junior Commissioned Officers and 12 personnel belonging to different ranks. The army team, which carried out the operation, thoroughly searched the residence of the petitioner around midnight but, neither the petitioner nor the ULFA leaders were found in the residence. Some items were seized from the petitioner's residence for investigation, which were later on handed over to the Officer-in-Charge, Jorhat Police Station. On the complaint of the petitioner, matter was investigated by the army authority through departmental Court of Enquiry; which opined that action be taken against the mentioned individuals as per their culpability. It was stated that in so far police investigation was concerned, army was rendering all possible cooperation. However, the affidavit admitted that petitioner was involved in contractual works pertaining to Military Engineering Services. It was further stated that the place where the operation was carried out i.e., Rowriah Tiniali, Jorhat was a notified disturbed area under the Armed Forces (Special Powers) Act, 1958, which empowered the army to carry out search and seizure operation within the disturbed area. Allegation of the petitioner of taking away cash and jewellery by the raiding team has been denied as the same was not established in the Court of Enquiry. Eighteen items were seized, which were subsequently handed over to the Jorhat Police. Havildar Sandeep Thapa was made available to the police for questioning. It was admitted that 3 Counter Intelligence Surveillance Unit (CISU) team, comprised of one officer, two Junior Commissioned Officers and 12 other personnel of different ranks, totalling 15, who took part in the operation.
20. An affidavit-in-opposition was also filed by respondent No. 5, Sri Bokul Ch. Gogoi, Inspector of Police, Officer-in-Charge, Jorhat Police Station. It was stated that on receipt of information from the petitioner on 21.12.2011, Jorhat Police Station Case No. 922/11 was registered under Sections 395/397 of the IPC. In paragraph 6 of the affidavit, he mentioned 12 items and in addition, one pistol with magazine which were handed to the police by the army authority on 28.12.2011 and 29.12.2012, which were subsequently handed over to the petitioner as per order of the Chief Judicial Magistrate, Jorhat. The articles, as per seizure list, are as under:-
"i) 1 (one) Laptop Lenovo-G470,
ii) 1 (one) Digital Camera,
iii) 2 (two) Mobile phone Nokia
iv) 1 (one) Driving Licence
v) 1 (one) Hard Disk
vi) 1 (one) Philips MP3 player
vii) 1 (one) Cheque Book S/No.698621 of Indian Bank
viii) 1 (one) Cheque Book S/No.798271
ix) 1 (one) Cheque Book of Syndicate Bank
x) 1 (one) Cheque Book of Multicity Indian Bank,
xi) 1 (one) Smritigranth of Chaudang,
xii) 11 (eleven) nos. of colour photographs.
On 29.12.2012 JC8108106681 Subeddar Lal Singh, 3 CISU, Rangapahar Dimapur handed over Pistol RP No. 1325041 with magazine at Jorhat PS as per seizure list."
20.A. It was stated that investigation was going on and final report would be submitted on completion of the investigation.
21. Petitioner has filed reply-affidavit to the affidavit of respondent No. 2 denying that he has any links with ULFA (Anti Talks) and that he is an active link man of ULFA (Anti Talks). Allegation that he was involved in illegal and nefarious activities has been denied. He has also denied that ULFA leaders had taken shelter in his residence. He has stated that he is a reputed businessman and has executed various contractual works in the Military Engineering Services. He was awarded as the best contractor of the Military Engineering Services and the award was presented to him by the Engineer in Chief of Army at New Delhi. There is no criminal case pending against the petitioner. He has reiterated his allegation that cash and jewellery were taken away from his residence by the army team after blind-folding the inmates and breaking open the lock of the steel almirah.
22. We have already noticed the core submission of Mr. Das, learned counsel for the petitioner, who has given up the other reliefs sought for in the writ petition barring the relief of compensation. He submits that the army team had unauthorizedly entered into the residence of the petitioner at the dead of night and violated the army instructions relating to conduct of such operation. Referring to the decision of the Supreme Court inNaga People's Movement of Human Rights v. Union of India, reported in (1998) 2 SCC 109, he submits that no information was obtained from the local civil authorities. Representatives of local civil administration were not made part of the raiding party. Search of the residence was carried out in the absence of civil police. No permission/requisition was obtained from the local Magistrate. Therefore, it is a clear case of violation of the human rights of the petitioner and his family members; for violation of such right, Court may consider grant of adequate compensation having regard to the settled legal position in this regard. In support of his submissions, he has also placed reliance on a Division Bench decision of this Court inAnima Basumatary v. Union of India, reported in 2004 (Supp) GLT 700and a decision of the Supreme Court inN. Sengodan v. State of Tamil Nadu, reported in (2013) 8 SCC 664.
23. Mr. SC Keyal, learned Assistant Solicitor General representing the respondents has submitted detailed written submissions and additional-written submissions. He contends that petitioner was not present at his residence at the time of the incident. It was his wife Smti. Renu Gogoi who was present. Therefore, if there is any person who is aggrieved by the army action, it could only be the wife and not the petitioner. Wife has already moved the Supreme Court by filing writ petition, which has been registered as WP(Crl.) No. 143/2014, in which notice has been issued. Therefore, petitioner would hardly have any locus standi to prosecute the present writ proceeding. In so far the writ petition by the wife is concerned, she has suppressed the fact of filing of the present writ petition by the husband before this Court. In this connection, reliance has been placed on the decision of the Supreme Court inPratibha Ramesh Patel v. Union of India, reported in (2016) 12 SCC 375; where the Supreme Court dismissed the writ petition filed before it with costs, as it was found that petitioner had also filed a writ petition before the High Court under Article 226 of the Constitution of India which fact was not disclosed. Mr. Keyal therefore submits that the present proceeding may be kept in abeyance till the disposal of the writ petition filed by the petitioner's wife Smti. Renu Gogoi before the Supreme Court. His further submission is that the army raiding party led by Captain Rubina Kaur Keer had acted within the four corners of Section 4(d) of the Armed Forces (Special Powers) Act, 1958, which sanctions entry and search of premises without warrant. In such circumstances, more so, when the army authorities have already taken action against the erring personnel, question of payment of compensation to the petitioner or saddling the army authorities with such compensation, does not arise. Mr. Keyal has also produced the record in original relating to the Court of Enquiry before the Court. In support of his submissions, Mr. Keyal, learned Assistant Solicitor General has placed reliance on the following decisions:-
i)MP Sharma v. Satish Chandra, AIR 1954 SC 300;
ii)Jasbhai Motibhai Desai v. Roshan Kumar, (1976) 1 SCC 671;
iii)Chandra Mohan Shukla v. State of Assam, Mil LJ 2007 Gau 186;
iv)Masooda Parveen v. Union of India, (2007) 4 SCC 548;
v)Rajendran Chingaravelu v. RK Mishra, (2010) 1 SCC 457;
vi)Umesh Singh v. State of Bihar, (2013) 4 SCC 360.
24. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record, including the record produced by Mr. Keyal.
25. Before adverting to the merits of the case, it would be apposite to deal with the objection raised by Mr. Keyal regarding the locus standi of the petitioner vis-a-vis the writ petition filed by the wife before the Supreme Court and also as to his contention that the present writ proceeding be kept in abeyance till the decision by the Supreme Court in the writ petition filed by the wife.
26. The present writ petition was filed on 25.04.2012 and the Court proceeding was set in motion by issuance of notice on 02.05.2012. We have seen the progression of the case since then following various orders passed by this Court from time to time. According to army authorities, the needle of suspicion was towards the petitioner and his involvement in illegal activities was suspected and, therefore, to nab him along with three other leaders of ULFA (Anti Talks) inside his residence, an operation was planned and executed. It is another matter that petitioner was not present in his residence at that point of time and nothing incriminating was recovered, not to speak of any militants. It is also not disputed that the house where the operation was carried out belongs to the petitioner. It was petitioner's house which was raided in the midnight of 21.01.2012. Therefore, petitioner is certainly an aggrieved person and has locus standi to institute the present writ proceeding; cognizance of which has been duly taken by this Court leading to passing of various orders from time to time and culmination of the Court of Enquiry, which would be adverted to a little later in the judgment. The fact that his wife Smti. Renu Gogoi subsequently filed a writ petition before the Supreme Court i.e., WP(Crl.) No. 143/2014, in our opinion, would not divest the petitioner of his standing to maintain the present writ proceeding. Renu Gogoi has filed the writ petition before the Supreme Court subsequently in the year 2014, much after filing of the present writ petition by the petitioner before this Court in the year 2012. Though a view was taken at an earlier stage that we may await the outcome of the writ petition filed by Smti. Renu Gogoi before the Supreme Court, we feel that since the present writ petition was filed at an earlier point of time and since then about 6 years have elapsed, it would not be justified to defer hearing of the present proceeding. Moreover, there is no restraint order of the Supreme Court. Mr. Keyal, learned Assistant Solicitor General has pointed out certain lacunas in the writ petition filed by Smti. Renu Gogoi, including suppression of pendency of the present writ proceeding before this Court. We refrain from expressing any opinion on the petition filed by Smt. Renu Gogoi, since it is before the Supreme Court. But we can say this much that suppression of material facts by Smti. Renu Gogoi in her writ petition would not cloud the present writ proceeding which we have already noted was filed much earlier. That apart, the present writ petition is of the year 2012 and, therefore, requires an early resolution. Courts in India are now on a mission to ensure that there is no five plus pendency in the country and in tune with such objective, we feel that it is time the present writ petition should be decided on its own merit, based on the pleadings and arguments advanced. Preliminary objection raised by Mr. Keyal is therefore rejected.
27. Before adverting to the rival submissions, we are of the view that the contours of the writ petition have been brought down to a narrow compass following the findings recorded in the Court of Enquiry by the army authority. We may now advert to the findings recorded by the Court of Enquiry. It is a detailed report. The first part of the report deals with the preparation/build up leading to the eventual operation. The second part of the report deals with the conduct of operation and the third part of the report deals with post operation fall out before recording the opinion. As per the first part of the report, intelligence inputs gave the impression that high level ULFA (Anti Talks) cadres were likely to move from Majuli to Mon (Nagaland) and halt in the residence of the petitioner during transit. The residence of the petitioner was thereafter kept under surveillance. Antecedents of the petitioner were checked. Finally the operation was conducted on the intervening night of 20.12.2012 and 21.12.2011. The operation carried out was legitimate and as per charter of duties of CISU. The operation was led by Captain Rubina Kaur Keer, who had two and half years of service and the raiding party comprised of Subedar Balbir Singh, Naib Subedar GB Sahu and 12 other personnel of various ranks in three vehicles. The following deficiencies were noted in the conduct of the operation:-
i) The army team was neither accompanied by the police representatives nor by village elders nor by any troops from the local army unit.
ii) Despite intelligence input that three important ULFA (Anti Talks) cadres were expected to take shelter in the house of the petitioner and there was likelihood of a fire fight, no infantry or special force elements were taken along.
iii) The team did not obtain No Objection Certificate from the house owner or elders of the locality.
iv) Neither any seizure memo was prepared nor FIR lodged before the concerned police station by 3 CISU declaring the recoveries made during the operation.
v) Havildar Sandeep Thapa of 3 CISU had picked up one licensed pistol and Mobile handset (Nokia) from the residence of the petitioner which he did not disclose to Captain Rubina Kaur Keer or anyone in the group.
vi) Captain Rubina Kaur Keer had telephonically informed Colonel G Srikumar, Commanding Officer 3 CISU (who was then on leave) about the recoveries made from the residence of the petitioner. Colonel G. Srikumar neither advised Captain Rubina Kaur Keer to declare the recoveries to Jorhat Police nor asked her to lodge FIR.
vii) Commanding Officer, Lieutenant Colonel Dharamvir Singh, who was at Kohima, was not informed about the operation.
viii) But after coming to know about the incident, Lieutenant Colonel Dharamvir Singh did not assume command and control and did not ensure follow-up action to prevent the incident from further flaring up.
ix) Neither a situation report nor any other report was initiated by the unit on the operation and furnished to the Headquarters 3 Corps.
x) No effort was made by 3 CISU to inform the Jorhat Police and to salvage the situation at the initial stage itself.
xi) Havildar Sandeep Thapa denied taking of Mobile phone and pistol of the petitioner; personal lockers/boxes of the concerned personnel were not checked by 3 CISU.
xii) Under intense questioning, Havildar Sandeep Thapa admitted that he had stolen the Mobile phone but had thrown away the same out of fear. However, he still denied having any knowledge about the pistol.
xiii) On being questioned by Jorhat Police, Havildar Sandeep Thapa accepted that he had picked the missing Mobile phone from the house of the petitioner.
xiv) After sustained questioning and pressure, Havildar Sandeep Thapa admitted that he had also picked up the missing pistol which was recovered from the unit location.
28. After highlighting the major deficiencies which marred the operation, the Court of Enquiry opined that the operation was a legitimate one and was cleared by the higher authority, but the procedures required to be followed were not adhered to. Allegation of taking away of money and jewellery could not be ascertained. Relevant portion of the findings of the Court of Enquiry is extracted hereunder:-
"1. Armed Forces conduct Counter Insurgency Operations by virtue of powers vested in them vide Section 4 of the Armed Forces (Special Powers) Act, 1958, which permits conduct of Cordon and Search Operations.
2. Perusal of the correspondence between Headquarters 3 Corps and 3 Counter Intelligence and Surveillance Unit revealed that there were reliable inputs that United Liberation Front of Assam (Anti Talk) was planning to carry out sabotage activities at Air Force Station, Chabua. It was also revealed by the sources that there were inputs that Mr. Puna Gogoi had links with ULFA (AT). He was also suspected to be giving necessary assistance to ULFA cadres to infiltrate in cantonment areas. However, there were no inputs from sister intelligence agencies, police or higher Headquarters to corroborate the same. His activities and house were kept under surveillance by 3 CISU.
3. Pre-operational surveillance confirmed the presence of three middle aged persons in the house of Mr. Puna Gogoi. They were alleged to be ULFA (AT) cadres who have come from Majuli and were likely to head towards Mon (Nagaland). 3 CISU team under SS-43767A Captain Rubina Kaur Keer carried out a cordon and search operation at the residence of Mr. Surajit Gogoi alias Puna Gogoi, son of Late Dina Nath Gogoi, resident of Rowriah Tiniali, Jorhat on the night 20/21 December 2011.
4. The operation was cleared by IC-50968F Colonel G. Srikumar, Sena Medal, Commanding Officer, 3 CISU, keeping Brigadier General Staff (Operations), Headquarters 3 Corps duly informed.
5. In spite of a likelihood of the presence of Self Styled Lieutenant Colonel Bijoy Das (Commander 28 Battalion) and Lieutenant Pulin Buragohain (Finance Head Sibsagar) of ULFA (AT) with arms, the team was led by a lady officer with two and half years of service and without any infantry or Special Forces elements.
6. There was no use of criminal force and no injuries were inflicted upon the inmates of the house. The inmates of the house were blindfolded to ensure that the identity of personnel of 3 CISU who were local residents of Assam is not compromised. The hands of the inmates were tied because they were becoming aggressive and could have interfered with the search operation. In fact, Mrs. Renu Gogoi confirmed that a blanket was put on her and her daughter to protect them from cold.
7. The report of all items, except one mobile phone and one pistol picked up by Havildar Sandeep Thapa, recovered from the house were given to Headquarters 3 Corps. These items were subsequently handed over to Jorhat Police. Headquarters 3 Corps was also intimated of the operation both during the planning as well as post conduct stage. Intention of the operation, therefore, was bonafide.
8. The allegation of theft of money (Rs.1.5 lacs), jewellery worth Rs. 6 to 7 lacs and snatching of gold chain from the neck of Mrs. Renu Gogoi and her daughter could not be ascertained. No receipt of gold ornaments has been produced by Mr. Puna Gogoi. Mrs. Renu Gogoi identified Havildar Sandeep Thapa to be the person who had snatched the chains. She further reiterated that he was the same person who spoke to her in Assamese language. On questioning the witnesses, it was later confirmed that Havildar Sandeep Thapa does not speak Assamese language. These allegations appear to be an afterthought by the inmates of the house with the aim to malign the individuals.
9. Capt. Rubina Kaur Keer was the team commander for the operation. She has approximately two and a half years of commissioned service. During this time, she has been awarded Chief of Army Staff Commendation Card and also has been appreciated by Special Commissioner of Police, Special Cell, Delhi Police Headquarters for a joint operation with Delhi Police at Bangalore in May 2011.
10. The cordon and search operation carried out at the house of Mr. Puna Gogoi was a legitimate operation. However, following procedural violations were committed by the personnel involved in the conduct.
(a) No police representative accompanied the 3 CISU team.
(b) No 'No Objection Certificate (NOC)' was obtained from the house owner/Gaonburah of the locality.
(c) Recoveries made from the house for further investigation were not declared at Police Station, Jorhat by preparing Seizure Memo and lodging a First Information Report (FIR).
(d) Post operation, no Situation Report was forwarded by 3 CISU to Headquarters 3 Corps.
11. The party of 3 CISU had covered their faces to protect their identity. Allegations of breaking open of the steel almirahs and trunks, however, could not be verified.
12. No 5047654K Havildar Sandeep Thapa picked up one licensed Pistol and mobile phone of Mr. Surajit Gogoi alias Puna Gogoi with malafide intention.
13. IC-50968F Colonel G. Srikumar. Sena Medal, Commanding Officer 3 CISU was on leave with effect from 18 December 11. However, he was in picture of the conduct of the operation. He did not inform the officiating incumbent of the impending operation during handing/taking over. IC- 57196X Lieutenant Colonel Dharamvir Singh, Officiating Commanding Officer, 3 CISU was kept out of the loop on orders of the Commanding Officer thereby not allowing him to take control of the situation and prevent the incident from flaring up. Commanding Officer also failed to advice SS-43767A Captain Rubina Kaur Keer to follow correct drills and procedures after the conduct of the operation and thereby prevent the situation from flaring up.
14. IC-57196X Lieutenant Colonel Dharamvir Singh was the Officiating Commanding Officer on the day the operation was conducted. Even though he came to know about the operation he did not exercise adequate command and control thereby allowing the situation to flare up.
15. In spite of adequate experience and seniority, JC-811233H Subedar Balbir Singh and JC-811361A Naib Subedar GB Sahu did not advise SS- 43767A Captain Rubina Kaur Keer about following the correct drills and procedures (pre and post operation).
16. When it came to light through media that some additional items alleged to have been picked by the team during the operation, adequate efforts including search of personal lockers/bags etc., were not made by the unit for recovery of the said items.
17. Mr. Surajit Gogoi alias Puna Gogoi son of Late Dina Nath Gogoi, resident of Rowriah Tiniali, Jorhat is a Military Engineering Service (MES) contractor since the year 2003 and undertakes contracts for Army and Air Force Units located at Jorhat. He was suspected to be one of the sources who could provide access to ULFA (AT) into Air Force Station, Jorhat.
18. Before 2003, Mr. Puna Gogoi was a village Panchayat Rural Development Contractor. In the year 1991 during OP Bajrang he was jailed for four months for alleged support to United Liberation Front of Assam. He was involved in a fight with one Mr. Ranjit Saikia, a fellow contractor, in the year 2010 and a case was registered by the police against him. He has animosity with Mr. Nirmal Gogoi alias Lal, who is known criminal and a case under Arms Act is pending against him in Jorhat Police Station.
19. Mr. Nirmal Gogoi alias Lal was one of the main sources of 3 CISU providing information about Mr. Puna Gogoi. He has been absconding since the launch of the operation. Mr. Nirmal Gogoi alias Lal may have given information against Mr. Puna Gogoi to settle score.
20. Mr. Puna Gogoi owns 12 vehicles. He has three wives. The individual appears to live beyond his known source of income."
29. Mr. SC Keyal, learned Assistant Solicitor General has informed the Court that following the Court of Enquiry the four personnel were court martialed and various punishments have been imposed upon them, including reprimand on Captain Rubina Kaur Keer; 3 months rigorous imprisonment, reduction in rank and dismissal from service on Havildar Sandeep Thapa; severe reprimand on Havildar Bhupen Hatimata, which will operate throughout his service career affecting his service and career progression and 14 days rigorous imprisonment in military custody in respect of Sepoy Jiban Neog. In so far Subedar Balbir Singh is concerned, he was awarded the penalty of recordable severe displeasure and in respect of Naib Subedar Gagan Bihari Sahu, he was awarded the penalty of non-recordable severe displeasure.
30. 3 CISU had carried out the operation which, according to the Court of Enquiry, was a legitimate and bona-fide one and covered by the protection as afforded by Section 4 of the Armed Forces (Special Powers) Act, 1958. Section 4 reads as under:-
"4. Special Powers of the armed forces.-Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area,-
(a) if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances;
(b) if he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as a training camp for armed volunteers or utilised as a hide-out by armed gangs or absconders wanted for any offence;
(c) arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest;
(d) enter and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully restrained or confined or any property reasonably suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawfully kept in such premises, and may for that purpose use such force as may be necessary."
30.A. Thus under Section 4 (d) of the Armed Forces (Special Powers) Act, 1958, any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area, enter and search without warrant any premises to make any arrest of any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence or to recover any person believed to be wrongly restrained or confined or to recover arms, ammunition's etc. believed to be unlawfully kept.
31. In Naga People's Movement of Human Rights (supra), validity of the Armed Forces (Special Powers) Act, 1958 was questioned. While upholding the constitutional validity of the aforesaid Act, Supreme Court referred to Section 4(d) thereof and held as under:-
"50........................................it is implicit in the power that has been conferred under Section 4 (d) that it should be exercised in accordance with the provisions relating to search and seizure contained in the Criminal Procedure Code and the property or the arms, ammunition, etc. that is seized during the course of search under Section 4(d) must be handed 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 search and seizure.
51.............In the circumstances, it must be held that the provisions of CRPC. governing search and seizure have to be followed during the course of search and seizure under Section 4(d) and the property or arms, ammunition, etc. seized during the course of such search has to be produced by the officer of the armed forces before the officer-in-charge of the nearest police station with the least possible delay along with a report of the circumstances occasioning such search and seizure."
Supreme Court also referred to the instructions placed before it by the learned Attorney General in the form of list of "Dos and Don'ts", issued from the Army Headquarters from time to time. Supreme Court held that the instructions contained in the said list must be followed while acting under the Armed Forces (Special Powers) Act, 1958. We extract hereunder the aforesaid list of "dos and don'ts":-
"53. Before we conclude the consideration of the questions regarding the constitutional validity of the Central Act, we may refer to the grievance of the petitioners that there has been wide spread abuse of powers conferred under the Central Act by the personnel of the armed forces while such forces were deployed in the areas declared as ' disturbed areas' under the Central Act. In the writ petition reference has been made to a number of instances. Mrs. Indira Jaisingh has also placed before us the reports of the Commission of Inquiry headed by Shri Justice D.M. Sen, a retired Judge of Gauhati High Court in respect of some of those instances. On behalf of Union of India it has been submitted that an inquiry is made whenever any complaint about mis-use of powers conferred under the Central Act is received and that on enquiry most of the complaints were found to be false, and that whenever it is found that there is substance in the complaint, suitable action has been taken against the person concerned under the provisions of the Army Act. The learned Attorney General has placed before us instructions in the form of a list of "Do's and Don'ts" that are issued by the Army Headquarters from time to time. The instructions contained in the said list which must be followed while acting under Armed Forces (Special Powers) Act, 1958 are in these terms:-
"List of Dos and Don'ts while acting under the Armed Forces (Special Powers) Act, 1958.
1. Action before Operation
(a) Act only in the area declared 'Disturbed Area' under Section 3 of the Act.
(b) Power to open fire using force or arrest is to be exercised under this Act only by an officer/JCO/WO and NCO.
(c) Before launching any raid/search, definite information about the activity to be obtained from the local civil authorities.
(d) As far as possible co-opt representative of local civil administration during the raid.
2. Action during Operation
(a) In case of necessity of opening fire and using any force against the suspect or any person acting in contravention to law and order, ascertain first that it is essential for maintenance of public order. Open fire only after due warning.
(b) Arrest only those who have committed cognizable offence or who are about to commit cognizable offence or against whom a reasonable ground exists to prove that they have committed or are about to commit cognizable offence.
(c) Ensure that troops under command do not harass innocent people, destroy property of the public or unnecessarily enter into the house/dwelling of people not connected with any unlawful activities.
(d) Ensure that women are not searched/arrested without the presence of female police. In fact women should be searched by female police only.
3. Action after operation
(a) After arrest prepare a list of the persons so arrested.
(b) Handover the arrested persons to the nearest Police Station with least possible delay.
(c) While handing over to the police a report should accompany with detailed circumstances occasioning the arrest.
(d) Every delay in handing over the suspects to the police must be justified and should be reasonable depending upon the place, time of arrest and the terrain in which such person has been arrested. Least possible delay may be 2-3 hours extendable to 24 hours or so depending upon particular case.
(e) After raid make out a list of all arms, ammunition or any other incriminating material/document taken into possession.
(f) All such arms, ammunition, stores, etc. should be handed over to the police station along with the seizure memo.
(g) Obtain receipt of persons and arms/ammunition, stores etc. so handed over to the police.
(h) Make record of the area where operation is launched having the date and time and the persons participating in such raid.
(i) Make a record of the commander and other officers/JCOs/NCOs forming part of such force.
(k) Ensure medical relief to any person injured during the encounter, if any person dies in the encounter his dead body be handed over immediately to the police alongwith the details leading to such death.
4. Dealing with Civil Court
(a) Directions of the High Court/Supreme Court should be promptly attended to.
(b) Whenever summoned by the courts, decorum of the court must be maintained and proper respect paid.
(c) Answer questions of the court politely and with dignity.
(d) Maintain detailed record of the entire operation correctly and explicitly.
1. Do not keep a person under custody for any period longer than the bare necessity for handing over to the nearest Police Station.
2. Do not use any force after having arrested a person except when he is trying to escape.
3. Do not use third degree methods to extract information or to extract confession or other involvement in unlawful activities.
4. After arrest of a person by the member of the armed forces, he shall not be interrogated by the member of the armed force.
5. Do not release the person directly after apprehending on your own. If any person is to be released, he must be released through civil authorities.
6. Do not temper with official records.
7. The armed forces shall not take back a person after he is handed over to civil police."
54. The instructions in the List of "Do's and Don'ts" which must be followed while providing aid to the civil authority are as under:-
"List of Dos and Don'ts while providing aid to civil authority DOS
1. Act in closest possible communication with civil authorities throughout.
2. Maintain inter-communication if possible by telephone/radio.
3. Get the permission/requisition from the Magistrate when present.
4. Use the little force and do as little injury to person and property as may be consistent with attainment of objective in view.
5. In case you decide to open fire:-
(a) Give warning in local language that fire will be effective.
(b) Attract attention before firing by bugle or other means.
(c) Distribute your men in fire units with specified Commanders.
(d) Control fire by issuing personal orders.
(e) Note number of rounds fired.
(f) Aim at the front of crowd actually rioting or inciting to riot or at conspicuous ring leaders, i.e, do not fire into the thick of the crowd at the back.
(g) Aim low and shoot for effect.
(h) Keep Light Machine Gun and medium Gun in reserve.
(i) Cease firing immediately once the object has been attained.
(j) Take immediate steps to secure wounded.
6. Maintain cordial relations with civilian authorities and para military forces.
7. Ensure high standard of discipline.
8. Do not use excessive force.
9. Do not get involved in hand to hand struggle with the mob.
10. Do not ill treat any one, in particular, women and children.
11. No harassment of civilians.
12. No torture.
13. No communal bias while dealing with civilians.
14. No meddling in civilian administration affairs.
15. No military disgrace by loss/surrender of weapons.
16. Do not accept presents, donations and rewards.
17. Avoid indiscriminate firing."
32. Thus, one of the things to be done before launching any raid/search is to obtain definite information about the activity from the local civil authorities. As far as possible, representative of the local civil administration should be co-opted during the raid. After the operation is over, a list of all arms, ammunitions or any other incriminating material/document taken into possession should be prepared; all such arms, ammunitions, stores etc. should be handed over to the police station along with the seizure memo and to obtain receipt thereof. The raiding party has to act in closest possible communication with civil authorities and maintain inter-communication if possible by telephone/radio. The raiding party has also to get permission/requisition from the Magistrate when present and has to maintain high standards of discipline.
33. As noticed above, the subject matter of the writ petition now has boiled down to a very narrow compass following the Court of Enquiry conducted by the army authorities and the imposition of penalty. The Indian Army is a professional army and is respected worldwide for its commitment to professionalism and high standard of military ethics. While aberrations here and there cannot be ruled out at the time of conducting counter insurgency operations, the army authorities themselves have initiated steps to punish the personnel for nonconforming to the procedural safeguards in the form of dos and don'ts issued by the Army Headquarters, which have been mandated to be scrupulously followed by the Supreme Court. However, certain material omissions are glaring in so far the present case is concerned. It is evident that adequate home work was not done leading to a botched operation. The Court of Enquiry has opined that the main source of 3 CISU had personal animosity with the petitioner and might have given information against the petitioner to settle scores. Thus there was no cross-verification of the input - whether the information received was actionable or not? No information were obtained from the local civil authorities. Because of this, the whole operation ended in a fiasco. There is nothing on record to justify such unwarranted raid on the residence of the petitioner. Owning 12 vehicles, having three wives and living beyond his known source of income can be no ground to sanction a search operation under Section 4(d) of the Armed Forces (Special Powers) Act, 1958. Therefore, there appears to be a failure at the operational level as well as at the functional level, leading to gross violation of the dos and don'ts enumeration of which may not be necessary because the violations are so glaring. Moreover, without taking names, we feel that there appears to be grave lapse at the supervi
Please Login To View The Full Judgment!
sory level also. Firstly, in sanctioning such a raid without proper cross-verification; secondly, in authorizing a relatively inexperienced officer having service of only two and half years to lead such an operation resulting in gross violations of procedural dos and don'ts; and thereafter in not informing the army higher authorities. Had prompts remedial steps been taken, the damage could have been substantially minimized. 34. From what has transpired, it is evident that the residence of the petitioner was raided by the army authorities during the dead of night. The very basis for conducting such raid is questionable and the result is there for all to see. It goes without saying the kind of mental trauma and stress the inmates would suffer when subjected to such a raid, that too, in the dead of night in the absence of the guardian of the family i.e., the petitioner. Such action on the part of the army authority has certainly violated the rights of the petitioner and the family members under Article 21 of the Constitution of India. The recent path breaking decision of the Supreme Court acknowledging the right to privacy as a basic fundamental right inKS Puttaswamy v. Union of India, reported in (2017) 10 SCC 1, is a significant development in the evolution of constitutional jurisprudence in our country. A 9-Judge Bench of the Supreme Court has held that right to privacy though not mentioned anywhere in the Constitution is an intrinsic part of Article 21 and the freedoms guaranteed in Part III of the Constitution and thus a basic fundamental right. 34.A. In KS Puttaswamy (supra), Supreme Court has declared that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part-III of the Constitution. Justice Chelameswar in his concurring judgment observed as under:- "374. I do not think that anybody in this country would like to have the officers of the State intruding into their homes or private property at will or soldiers quartered in their houses without their consent." Justice Sapre in his concurring judgment opined as under:- "557. In my considered opinion, "right to privacy of any individual" is essentially a natural right, which inheres in every human being by birth. Such right remains with the human being till he/she breathes their last. It is indeed inseparable and inalienable from human being. In other words, it is born with the human being and extinguishes with human being." In his concurring judgment, Justice Sanjay Kishan Kaul has held that the right to privacy is a basic human right; privacy is an inherent right. It is not given but which already exists. 34.B. Privacy of a person within the confines of his house or residence is a cherished right and has to be respected. Intrusion into the residence of a citizen would be permissible only subject to conformation with the standards mandated by our Constitution and the laws of the land which the army scrupulously follows. 35. Therefore, in the light of the above, it is clear that the right to privacy of the petitioner and his family members were infringed not only due to non-conformity with the dos and don'ts by the army unit which carried out the operation but by the very execution of the operation itself. There is a long line of judicial pronouncements in the country and the law is well settled that in case of violation of Article 21 of the Constitution of India, the constitutional courts in the exercise of their public law remedy can certainly award compensation though payment of such compensation cannot be equated with compensation sought for and adjudicated under the private law remedy. Compensation under the public law remedy is only in the form of a palliative granted to the person who has suffered violation of Article 21 leaving him free to pursue his other remedies as is permissible in law. The decisions inRudul Sah v. State of Bihar, reported in AIR 1983 SC 1086;Nilabati Behera v. State of Orissa, reported in AIR 1993 SC 1960;Sube Singh v. State of Haryana, reported in AIR 2006 SC 1117;Chairman, Railway Board v. Mrs. Chandrima Das, reported in (2000) 2 SCC 465;K.K. Saxena v. International Commission on Irrigation and Drainage, reported in (2015) 4 SCC 670, are only some of the decisions which reiterates the settled legal position. Regarding claim of the petitioner that cash and jewellery to the extent mentioned by him were taken away by the army authority, we find that such claim has been denied by the army authorities. That apart, the Court of Enquiry also could not arrive at any conclusion in this regard. This is a disputed assertion which may not be gone into in a proceeding under Article 226 of the Constitution. 36. In the light of the above, the following directions are hereby issued:- 1. Respondent No. 1 shall pay compensation of Rs. 1 lakh to the petitioner, which shall be deposited before the Registry of this Court within a period of 6 (six) weeks from the date of receipt of a certified copy of this order. Thereafter, on proper identification, Registry may release the amount to the petitioner. 2. In so far the other claim to compensation by the petitioner is concerned, including cash and jewellery, he may approach the civil court of competent jurisdiction within a period of 4 months from today where after, law will take its own course. 3. Respondent Nos. 1, 2 and 3, on the basis of the materials already collected, shall carry out a review of the modalities for such operation including cross verification of intelligence input and may consider issuing necessary guidelines so that collateral damages are minimised, if not altogether eliminated. 37. No further order is called for in the present proceeding. Writ petition is disposed of. Record produced by Mr. SC Keyal, learned Assistant Solicitor General is returned back.