REBA KANTA DEKA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner who is the elder brother of Sri Hari Chandra Deka @ Kiriti Kalita, a physically handicapped person, by the present writ petition is seeking a writ in the nature of Habeas Corpus directing the respondents more particularly the Army authorities to produce his physically handicapped brother allegedly picked up by the Army personnel on 21.7.2003 at about 11 p.m. from village Ganakpara while he came to the residence of the writ petitioner. The case of the petitioner as set up in the writ petition is that this younger brother Hari Chandra Deka @ Kiriti Kalita, a physically handicapped person with leg partially disabled, while coming to his house in village Ganakpara was picked up by the Army personnel on 21.7.2003 at about 11 p.m. in presence of his family members. According to the petitioner on that day one Tata Sumo was parked at about 50 meters away from his residence and the Army personnel after picking his brother took him in the said vehicle in presence of the petitioner as well as his mother and also in presence of the villagers. According to the petitioner since than nobody received any information regarding the whereabouts of his younger brother and though they informed the Army camp as well as the nearest police station, they unable to get any information about Sri Hari Chandra Deka @ Kiriti Kalita. It: has further been contended in the writ petition that on 22.7.2003 the vehicle in which his brother was taken away by the Army personnel was recovered by the police and seized in connecting with Kalaigaon P.S. Case No. 56 of 2003 registered under Section 365/34 of IPC on the basis of the First Information Report submitted by the petitioner before the Officer-in-Charge of the said police station. The petitioner also stated in the writ petition that on 23.7.2003 he approached the Deputy Commissioner, Darrang as well as the Superintendent of Police and submitted the representation for taking necessary action for handing over of his brother to the civil authority but in spite of such representations as well as the public petition submitted by the villagers on 25.7.2003 his brother has not been handed over by the Army to the civil authority or produce before any court of law as required under the provision of Armed Forces (Assam and Manipur) Special Powers Act, 1958.

(2.) The respondent No. 1 to 4 i.e. the Army authorities on receipt of the notices filed their affidavit-in-opposition on 2.1.2004, sworn by Major Suresh Kumar, denying picking up of Hari Chandra Deka @ Kiriti Kalita on 21.7.2003 and taking the stand that no Army party from Kalaigaon Army camp went to village Ganakpara on that date therefore there is no question of picking up any person on that day from that village. It has further been contended that Hari Chandra Deka was an active member of a banned organization namely United Liberation Front of Assam ULFA), but stopped working for that organization for last four/five years and in fact as per their information Hari Chandra Deka was picked up by two/three armed and masked person in a Tata Sumo vehicle, who are suspected to be the extremist, since said Deka had stopped working for them.

(3.) This court initially vide order dated 25.8.2003 directed the Army authorities to produce said Hari Chandra Deka @ Kiriti Kalita to the nearest police station forthwith, if he is in their custody, but as in their affidavit the Army authorities have denied picking up of said Hari Chandra Deka, this court vide order dated 28.9.2004 directed the learned District and Session Judge, Darrang, Mangaldoi to cause an inquiry into the allegation of disappearance of Hari Chandra Deka @ Kiriti Kalita and to submit the report within a period of three months. The report has ultimately been submitted by the learned District and Session Judge on 8.4.2006 after the order dated 29.3.2006 passed by this court taking exception for not submitting the report by the learned District Judge in time, pursuant to the direction issued vide order dated 28.9.2004. This court also vide order dated 10.4.2006 having perused the report and explanation submitted by the learned District and Session Judge for not submitting the inquiry report as directed vide order dated 28.9.2004 directed registration of suomoto contempt case against the officerin-charge of Kalaigaon Police Station for his failure in rendering requisite assistance to the learned District and Session Judge, to complete the inquiry.