PUJA DUBEY Vs. UNION OF INDIA AND ORS.

JUDGEMENT

(1.) In these proceedings under Article 226 of the Constitution, the petitioner's claim is for a direction to quash the findings and opinion of the Court of Inquiry convened on 23.11.2011 and the recommendations made by it on 16.03.2012 which revived the recommendations of the earlier Court of Inquiry. The earlier Court of Inquiry and its recommendations would hereafter be referred to as the "first Court of Inquiry"; the Court of Inquiry and its recommendations that are the subject matter of present proceedings shall be hereafter referred to as the "second Court of Inquiry" or "second COI". The petitioner also seeks a direction to initiate action against Respondent Nos. 5 to 12 commensurate with the recommendations of the second Court of Inquiry. The proceedings in the Court of Inquiry are in respect of an unfortunate accident which led to the death of the 12 year old minor son - Ansh Kumar Dubey (hereafter "Ansh") ­ of the petitioner and Lt. Col. Ajay Kumar Dubey. He died on 08.06.2007 in a parasailing accident during a camp organized by Army Wives Welfare Association (AWWA), conducted by the Jat Regimental Centre (hereafter "JRC").

(2.) The JRC, Bareilly held a summer camp for children from 4 th to 9th June 2007. This camp featured several activities including parasailing for children in the age group of 12 - 15 years. The petitioner's son Ansh, who was 12 years and 11 months of age, applied for the parasailing event held on 8th June, 2007. At around 06.00 AM that day, parasailing was conducted at the JRC firing range. The petitioner states that Ms. Roopali Bajpai (hereafter "Roopali"), aged 18 years, was asked to go first. After having worn the half body harness halfway, she refused to do the parasailing due to the poor condition of the harness. Thereafter, Ansh was asked. He had parasailed earlier on four occasions; twice at Tejpur (Assam) when he was 8 years and twice at Jammu at the age of 10 years. Ansh complained about the harness to the Officer -in -charge as well as the staff. Respondent No.12 Naik Lokesh Kumar briefed the children. Recruit Maan Singh gave a demonstration. CHM Rajbal Singh (Respondent No.11) fitted the harness to Ansh. According to the petitioner, as Ansh commenced parasailing, the half body harness along with the parachute slipped out of his body and he came down like a stone from a height of about 100 feet and hit the hard ground. The petitioner later learnt that a covered LPT truck was used to transport Ansh to the hospital where he was declared brought dead. A Court of Inquiry (COI) was ordered the same day. However, neither the petitioner nor her husband nor their 9 year old daughter who had witnessed the event, were examined by the COI. The petitioner kept representing to the authorities for copies of the photographs of the event and report of the COI. She was constrained to lodge an FIR No.095740 dated 7th December, 2007 in respect of six army personnel, including Respondent Nos. 4 to 7, alleging commission of offence under Section 304 -A IPC. Initially the charge sheet had been filed against two persons, i.e. Respondent Nos. 11 and 12 on 7 th June, 2008. However, a supplementary charge sheet was filed against four more officers, i.e. Respondent Nos. 6 to 9 on 3rd September 2008. Thereafter, the petitioner wrote letters seeking imposition of DV ban against those named in the charge sheet but the authorities took no action. Aggrieved by the filing of charge sheet against him, Respondent Nos. 11 filed a petition under Section 482 Cr.PC being Criminal Misc. Application No.33936 of 2008 before the High Court of Allahabad. While directing notice in the issue, the Allahabad High Court stayed the proceedings in Criminal Case No.1951/2008 before the Judicial Magistrate -II, Bareilly.

(3.) The first COI concluded proceedings; its report was not given to the petitioner; the respondents' failure to impose a DV ban against the charge - sheeted officers, coupled with the failure to furnish the COI report led the petitioner to file W.P.(C) 1607/2008 in this Court. On 10 th July, 2008, this Court recorded a statement made on behalf of the respondents that all the documents of the COI, including the photographs would be supplied to the petitioner. The said order was further modified by the learned Single Judge on 25th July, 2008, directing the respondent to supply to the petitioner the opinions and findings of the COI. This Court disposed of the petition. Thereafter, the petitioner was supplied with a copy of the report of the COI.