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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (CRL) 1837/2010
SAPNA TYAGI ..... Petitioner
Through Mr. Y.S.Tyagi, Adv.
versus
SECRETARY (DEFENCE) & ORS ..... Respondents
Through Mr. Ankur Chibber, Adv.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
ORDER
% 02.04.2013
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.
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.
I have heard the learned counsel for the parties and have also perused
the relevant documents on record.
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
judgement/ 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 judgement is referred below:
"18. Under these circumstances, I find it a fit case where respondents should compensate the petitioner for their own wrongs committed while conducting post-mortem on the body of the deceased Ajay Kumar. I need not look inot the cause of death of Ajay Kumar, if it was suicidal or homicidal, since this matter is being dealt with by the concerned court at jammu and Kashmir, where FIR has been registered.
19. Hence, the petition is partly allowed. Respondent are directed to pay Rs. 10,00,000/- as damages / compensation to the petitioner withtin three months from passing of this order."
Assailing the said order , the respondents went into appeal bearing
LPA no. 352 of 2009 wherein the Hon'ble division bench accepting the
submissions made by the appellants therein , directed to stay the operation of the order dated 25.05.2009 unless and until it is definitely established that
late Ajay Kumar died a homicidal death for which the appellants were
responsible, it would be difficult to adjudge if the compensation is liable to
be paid. The operative paragraph of the said judgement is reproduced below:
9. Although we do not agree with the conclusion arrived at by the learned Single Judge and, therefore, we set aside the order directing compensation , we must note that the learned counsel for the petitioner has fairly conceded that in case an enquiry/ investigation is ordered in the other writ petition, being W.P. (crl) 1837/2010, and if thereafter, it is found that it was a case of homicide and not suicide and the liability for the same is fixed on the appellants, the respondent would be at liberty to revive the writ petition and seek compensation. We think that this is a very fair concession made by the learned counsel for the appellant as unless and until it is definitely established that late Ajay Kumar died a homicidal death for which the appellants are responsible , it would be very difficult for the court to direct the appellants to pay any compensation to the petitioner.
Another Criminal Writ Petition was filed by the petitioner bearing
W.P. (Crl) 1618 of 2010, which was dismissed as withdrawn , reserving the
right of the petitioner to seek her remedies before the appropriate forum vide
order dated 08.11.2010.
Indisputably, the FIR had been registered in the state of Jammu & Kashmir and the provisions of the Code of Criminal Procedure cannot be
made applicable by this Court in view of the provisions of Section 1 of
the Code of Criminal Procedure. However, the police had already filed its
closure report in the said case and if the petitioner is not satisfied with
the said findings, she should challenge the same before the concerned court,
i.e. the court of Jammu and Kashmir and avail the remedies available to
her. This court has no jurisdiction to entertain and adjudicate upon the same,
as the Code of criminal Procedure , 1973 extends to the whole of India
except the State of Jammu & Kashmir, and on this very premise, the present
petition warrants dismissal.
Hence in the light of the above discussion, I do not find any merit in
the present petition and the same warrants dismissal. The present petition
therefore stands dismissed.
It is ordered accordingly.
KAILASH GAMBHIR, J
APRIL 02, 2013
