SAPNA TYAGI Vs. SECRETARY (DEFENCE) & ORS.

JUDGEMENT

(1.) BY this petition filed under Section 482 of the Code of Criminal Procedure and Article 226 of the Constitution of India, the petitioner seeks issuance of an order/direction in the nature of Mandamus directing the respondents to act in accordance with the established procedure of law as laid under Section 4 of the Code of criminal Procedure. Counsel for the petitioner submits that under Section 101 of the Army Act 1950, for any offence, it is the duty of the Army to take the offender into the military custody and then the decision is to be taken that whether the matter should be referred to the police for investigation or to be inquired by the Army itself. Counsel further submits that the kidney of the husband of the petitioner was found missing as per the post mortem report and this fact by itself establishes some foul play having taken place with the life of the husband of the petitioner. Counsel also submits that it is an admitted case of the respondent that the unnatural death of the husband of the petitioner had taken place in the Army Unit and not beyond the boundary of Army Unit. Counsel further submits that the army personnel are responsible as they failed to fulfil their duty in terms of the provisions envisaged under Army Act, 1950. Counsel also submits that the respondents failed to provide any evidence to show that Ajay Kumar had committed suicide. Counsel thus submits that the respondents have concealed various facts on the very face of it and it would be appropriate to direct an inquiry/investigation into the matter to establish certain necessary facts in issue and comprehend the cause of death of Shri Ajay Kumar.

(2.) COUNSEL for the respondent on the other hand submits that the police in this case has already filed a closure report under Section 479 Cr.P.C., and if the petitioner is aggrieved by the said closure report then the remedy of the petitioner lies in moving the concerned court in J & K Court to challenge the said closure report. Counsel also submits that in terms of para 529 of Defence Service Regulations, in the case of unnatural death i.e. death due to accident, violence suicide or death under suspicious circumstances which may occur within the Army Unit, it is the responsibility of the local police to hold an inquest in the like cases in accordance with the provisions of Section 174 Cr.P.C. Counsel thus submits that it was not within the domain of the Army authorities to conduct any kind of investigation into the alleged unnatural death of the husband of the petitioner. Counsel also submits that the respondent had conducted the necessary Court of inquiry in terms of Section 522 of DSA Rules and in the said Court of inquiry, it was found that the case of the husband of the petitioner is of suicide and no one was found involved behind the said suicide.

(3.) PETITIONER is the wife of late Shri Ajay Kumar who was enrolled as a Sapper/C.A.J. in the Indian Army. He was posted in 101 Engineer Regiment and was posted with his unit at Baramula in October, 2000. On 8.9.2001, petitioner received an information that Ajay Kumar had died in an encounter with the terrorist. Petitioner continued to receive contrary information from the unit of the deceased and on 10.09.2001 she was informed that her husband had committed suicide. Post mortem of Mr. Ajay Kumar was also conducted by the Medical officer at Meerut who found that the death of the petitioner was caused due to asphyxia. He also found that the left kidney of the deceased was absent. Commanding officer of the unit refused to divulge any information to the petitioner on her visit to Baramula on 21.12.2001. It is further alleged that the respondents failed to provide any evidence to show that Ajay Kumar had committed suicide, however to ascertain whether it was a case of suicide, the petitioner filed a writ petition bearing W.P.(Crl.) No. 320/2005 on 10.03.2005 seeking directions to be issued to the respondents to act in accordance with law to investigate into the murder of her husband Ajay Kumar. On 23.09.2005, the Hon'ble Court directed the respondents to provide copies of the investigation conducted by them to the petitioner herein in the cause of death of Ajay Kumar. As per the case of the petitioner, nothing was provided to the petitioner. Another Writ petition bearing W.P.(Crl) 243 of 2006 was filed assailing the aforesaid order and the petitioner vide the said writ petition prayed for issuance of direction to the respondents to investigate the offence of murdering the husband of the petitioner, late Shri Ajay Kumar in accordance with law and also prayed for monetary compensation. This Hon'ble Court vide judgment/order dated 25.05.2009 clearly stated that this court shall not look in to the cause of death of Ajay Kumar as the same is being dealt with the concerned court at Jammu And Kashmir, where the FIR has been registered. However, the petition was allowed only to the extent of disbursement of the monetary compensation as damages. The relevant portion of the said judgment is referred below: