THE CIVIL LIBERTIES & HUMAN RIGHTS ORGANISATION (CLAHRO) Vs. P.L. KUKRETY, G.O.C. ASSAM RIFLES AND OTHERS

JUDGEMENT

(1.) This case generated some heat in the Court room. We were not surprised at it inasmuch as Shri Nilamani Singh appearing for Civil Liberties and Human Rights Organisation (CLAHRO), the petitioner, expressed his indignation when Shri Chetia, learned Additional Central Government Standing Counsel and Shri Promode Singh, learned Senior Government Advocate, Manipur were trying to bring home to the court that due to difficult terrain and surrounding circumstances it had not been possible to hand over arrested persons even within 5 days to the Officer-in-charge of the nearest police station despite best efforts on the part of the Assam Rifles. The agitated mind of Shri Nilamani Singh, who is otherwise a very cool counsel, owes its origin to the fact that the Union of India or, for that matter, the State of Manipur was trying to place something before the Court which were not in their affidavits. This was, however, being done, according to the learned counsel, to prejudice the mind of the court against the just claim of compensation demanded by the petitioner on behalf of the victims of excess at the hands of the Assam Rifles. We have also to note the observation made by the Commanding Officer of Assam Rifles, Manipur Range (who was present in the Court) when the case was heard that the cases were worrying them, which was supplemented by Shri Chetia by stating that these cases are standing in the way of discharge of duties by the security forces inasmuch as their attention is diverted by such court cases. We brought home to all concerned that rule of law does not cease to function even under difficult circumstances. The clash of arms cannot drown the voice of law. Indeed, it is in difficult time that our concern for the rule of law is tested. It has been acknowledged by this Court in many cases, including Nongshitombi Vs. Reishang Keishing, 1982 (1) G.L.R. 755 and Naga Peoples Movement for Human Rights Vs. Union of India, 1988 (1) G.L.J. 132 that the task of security forces when called upon to fight insurgency is very difficult and the same should not be made more difficult by us. In Nongshitombi's case it was however stated by one of us (Hansaria, J.):-

(2.) The important question involved in this writ petition is whether this Court can and should grant compensation for violation of Fundamental Rights of the persons who met their end while assisting Assam Rifles or who were kept beyond the legally permitted time in the custody of the Assam Rifles before handing over to the officer-in-charge of the nearest police station. Shri Nilamani Singh contended that there was gross violation of Articles 21 and 22 (2) of the Constitution in the present cases inasmuch as the liberty of the citizens was curtailed by procedure unknown to law or the one which is visualised by the provisions of the Armed Forces Special Act, 1958, hereinafter the Act. May we say that the Act in its Sec. 5 has contemplated that any person arrested and taken into custody shall be made over "to the officer-in-charge of the nearest police station with least possible delay" together with a report of the circumstances occasioning the arrest. It has been impressed upon us by Shri Nilamani Singh that though all the concerned persons were arrested in Oinam, many of them were handed over to the police long after which in some cases even after 5 days. As Sec. 5 of the aforesaid Act visualises handing over of arrested person to the nearest police station with "the least possible delay", it is submitted by Shri Nilamani Singh that detention of these persons by the Assam Rifles for long five days or more did violate Art. 21 of the Constitution, so also Art. 22 (2).

(3.) In reply Shri Chetia and Shri Promod Singh tried to impress upon us that the time taken was minimum inasmuch as though the nearest police station to Oinam is that of Maram a distance of about 40 K.Ms. the time taken (even if the same is five days or more) cannot be regarded to be in violation of Sec. 5 because the difficult terrain, problem of transport and of taking the arrested persons with due security was not possible in 3/4 days. As nothing was said in the two counter affidavits filed by the concerned respondents relating to any difficulty in handing over the arrested persons to the nearest police station with least possible delay, it was stated by Shri Nilamani Singh that we may not allow the aforesaid factors to cloud our vision and to play soft on the gross violation of the Fundamental Rights. We agree with the learned counsel and we are of the view that the delay of five days or more in case of some of the arrested persons has not been duly explained to us to overlook the delay. May we say that Shri Nilamani Singh in all fairness did not make a grievance about delay upto 4 days due to difficult terrain.