Gauhati High Court
Page No.# 1/9 vs The State Of Assam And 11 Ors on 14 May, 2024
Page No.# 1/9
GAHC010173142016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5088/2016
HASMAT ALI and ANR
S/O LT. ARFAN ALI VILL- BAMUNGAON RIVER BLOCK, P.O. JOMDUAR P.S.
CHAPAR
2: FOKRUL ISLAM
S/O RAHAM ALI BROTHER OF LT. RAMJAN ALI VILL- JAMDUAR PT.II P.O.
JOMDUAR P.S. CHAPAR BOTH ARE DIST. DHUBRI
ASSAM
PIN - 783348
VERSUS
THE STATE OF ASSAM AND 11 ORS
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM, DISPUR,
GUWAHATI-6.
2:THE COMMISSIONER AND SECRETARY TO THE
GOVT. OF ASSAM
REVENUE and DISASTER MANAGEMENT AND RELIEF and
REHABILITATION DEPARTMENT
DISPUR
GUWAHATI -6.
3:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI -6.
4:THE DEPUTY COMMISSIONER
KOKRAJHAR
BTAD
ASSAM
Page No.# 2/9
PIN - 783370
5:THE DIRECTOR GENERAL OF POLICE
ASSAM
ULUBARI
GUWAHATI -7.
6:THE SUPERINTENDENT OF POLICE
KOKRAJHAR
DIST. KOKRAJHAR
BTAD
AS SAM. PIN - 783370.
7:THE DEPUTY COMMISSIONER
DHUBRI
ASSAM
P.O. and P.S. and DIST. DHUBRI
ASSAM
PIN - 783301.
8:THE SUPERINTENDENT OF POLICE
DHUBRI
ASSAM
P.O. and P.S. and DIST. DHUBRI
ASSAM
PIN - 783301.
9:THE OFFICER-IN-CHARGE
KOKRAJHAR POLICE STATION
P.O. KOKRAJHAR
DIST. KOKRAJHAR
BTAD
ASSAM PIN - 783370
10:THE OFFICER-IN-CHARGE
CHAPAR POLICE STATION
P.O. CHAPAR
DIST. DHUBRI
ASSAM
11:THE INCHARGE
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SALKOCHA POLICE OUT POST
P.O. SALKOCHA
P.S. CHAPAR DIST. DHUBRI
ASSAM
PIN - 783337.
12:PRINCIPAL CHOUDHURY
ACS
EXECUTIVE MAGISTRATE
KOKRAJHAR
P.O. and P.S. and DIST. KOKRAJHAR
BTAD
ASSAM
PIN - 783370
Advocate for the Petitioner : DR.B AHMED
Advocate for the Respondent : GA, ASSAMR1-7
BEFORE
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
ORDER
14.05.2024
Heard Mr M Hussain, learned counsel for the petitioner. Also heard Mr H Sarma,
learned Additional Senior Government Advocate for the State respondents.
2. By filing the present writ petition, the petitioner is challenging the Inquiry Report
dated 20.12.2013 conducted and submitted by the respondent No. 12 (Executive
Magistrate) Kokrajhar, on the incident of fake counter committed by the Kokrajhar
Police, on 24.07.2012, in which two persons, namely, Saher Ali and Ramjan Ali were
killed by the gunfire.
3. The case of the petitioner in brief is that on 24.07.2012, the Police Personnel
initially apprehended the deceased Ramjan Ali and Saher Ali and thereafter, killed the
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deceased with cold blood without any reason.
4. It appears that the petitioner No 1 is the father of Saher Ali and petitioner No. 2 is
the elder brother of Ramjan Ali. It is the case of the petitioners that they frequently
visited the Kokrajhar Police Station to lodge FIR against the Police Personnel, but the
Officer-In-Charge did not accept the FIR. Subsequently, on 01.02.2016, the Officer-In-
Charge, Kokrajhar Police Station threatened the petitioners with dire consequences and
also threatened to send the petitioners to jail, by showing them as extremists.
5. On 27.07.2012, the informant, namely, Fakrul Islam has lodged an FIR to the In-
charge, Salkocha Police Outpost, stating that last on 24.07.2012, at about 08.00 am, his
younger brother, namely, Md Ramjan Ali went to the market from home and he is
missing from there. Accordingly, an FIR was registered as GDE No. 508 dated
27.07.2012.
6. On 27.07.2012, the informant Somesh Ali also lodged an FIR, stating that his
younger brother Md Saher Ali is also missing from the market and accordingly, an FIR
with GD Entry No. 508 dated 27.07.2012 was registered.
7. On 25.07.2012, at about 11:30 pm, the informant, namely, Anjan Pandit, Deputy SP
(P), Kokrajhar, has lodged an FIR with the OC, Kokrajhar Police Station to the effect
that on 24.07.2012, an information was received in the Police Station that a group of
miscreants armed with lethal weapon have entered into the village and started setting
fire on the dwelling houses. The villagers ran away out of fear. Getting the information,
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the informant along with SI and other team members rushed to the place of occurrence,
wherein the rowdy mob which was already there, tried to attack the police party with an
intention to kill and snatch away service rifles of the Police Personnel. Further, the mob
fired towards the police party with guns. Upon seeing this, the police party resorted to
fire with rubber bullets and when the mob became more violent and some miscreants
from the mob started firing with guns, in order to save the life and property and
executing right of private defence, Police also resorted to effective firing, after which the
mob dispensed. Later on, while searching the place of occurrence, two unidentified
miscreants were found injured lying on the ground and they were immediately shifted to
the Civil Hospital. Accordingly, the FIR was received and registered as Kokrajhar PS
Case No. 225/2012, registered under Sections 147/148/149/ 447/448/353/307/436/427
IPC, read with Section 25 (1-b) of the Arms Act.
8. In relation to the aforesaid incident, an enquiry was conducted by the Executive
Magistrate, Kokrajhar and the finding of the said enquiry report dated 20.12.2013 is put
to challenge in the present writ proceedings.
9. Mr M Hussain, learned counsel for the petitioner submits that the enquiry report
submitted by Executive Magistrate is vitiated and, therefore, an independent enquiry by
the CBI is required to be ordered in the case. He further submits that the two civilians
have been brutally killed by the Police Personnel.
9.1 He further relied upon the decision of the Apex Court in the case of People's
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Union for Civil Liberties and Another -Vs- State of Maharashtra and Others; reported
in (2014) 10 SCC 635.
10. Mr H Sarma, learned Additional Senior Government Advocate, on the other hand,
submits that the magisterial enquiry dated 20.12.2013, indicates that the two youths
were part of an unruly mob, which had opened fire upon the Police Personnel and in
order to control the mob in self defence, the Police had to open fire. He accordingly,
submits that the instant writ petition is without any merit whatsoever.
10.1. Mr Sarma further submits that in terms of paragraph 31.16 of the Apex Court in
People's Union for Civil Liberties (supra), the Hon'ble Apex Court while laying down
the guidelines to be followed in cases of police encounter, provided that in the event the
family of the victim finds that the Police has not followed the procedure, can make a
complaint to the Sessions Judge having territorial jurisdiction over the place of incident
and upon such complaint being made, the Sessions Judge concerned shall look into the
merits of the complaint and address the grievances raised therein.
10.2. He further submits that in the present case, no such complaint has been made to the
jurisdictional Sessions Judge by the family members of the victim or by the petitioner.
10.3. He further submits that it is abundantly apparent from the report submitted by the
Magistrate that this is not a case of police encounter.
10.4. I have heard the submissions made at the Bar and have perused the materials
available on record.
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11. It appears from the available records that subsequent to the registration of the FIR,
the post-mortem of the dead bodies were conducted on 25.07.2012, which indicates
bullet injury and cut injury on different parts of the body, caused by sharp weapon. It
appears that since 20.07.2012, there was ethnic violence between the Bodos and the
Muslims in Kokrajhar district going on and altogether 5,595 nos. of cases were being
registered in different police stations of Kokrajhar. A huge number of persons were
killed and injured in the incident, affecting 153 nos. of villages of the district. Seizures
of available evidences were done in the aftermath of the incidents from the places of
occurrence. One inhabitant of the affected village, Bamungaon, Prabin Narzary had also
lodged a complaint, which was duly registered by the Kokrajhar Police Station as
Kokrajhar PS Case No. 256 of 2012, registered under Sections
147/148/149/447/448/380/436 IPC, against a group of Muslim miscreants on the same
day. Besides the said case, a complaint was also lodged by Sri Anjan Pandit, APS, the
then Deputy SP (P), Kokrajhar, vide Kokrajhar PS Case No. 225/2012. Further, in the
context of the aforesaid incident, a magisterial enquiry was also conducted by the then
District Magistrate, Kokrajhar, vide Office Memo No. KMJ 7/2013/5 dated 14.06.2013,
wherein the District Magistrate came to the finding that-
"After careful perusal of the statement of the witness, materials on record
and other relevant materials, it is found that the two youths who were killed
were the members of the violent mob who came to attack the village
Bamungaon during the communal riot going on in several parts of the Kokrajhar
District. It is also evident from the statements recorded above that the police
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party had to open fire only in self defence and in order to disperse the mob who
were destroying the houses of the villagers."
12. It further appears that during the aforesaid magisterial enquiry, statements of the
family members of the deceased and of the villagers were also recorded. It appears from
the statements of the villagers that the police party in order to retaliate the mob had to
fire. It further appears that the two youths had entered Kokrajhar in spite of existing
indefinite curfew imposed by the District Magistrate, Kokrajhar and joined the unruly
mob and attacked the police party with guns and other sharp weapons, for which the
police party had to open fire only in self-defence and in order to disperse the mob who
were destroying the houses of the villagers.
13. Undoubtedly, in a given case, where allegations of fake encounters have been
made, an independent impartial enquiry is to be conducted. However, in the present
case, it appears that the two youths have not been killed in any encounter, but were part
of the mob which had attacked the village and the Police Personnel. Further, it appears
that in terms of paragraph 31.4 of People's Union for Civil Liberties (supra), the
magisterial enquiry under Section 176 of the CrPC has been conducted and a report has
been submitted thereof, which clearly indicates that there has been no fake encounter as
alleged in the instant writ petition.
14. Further, in terms of paragraph 31.16 of the said judgment, the family of the victim
and/or the petitioner is entitled to make a complaint to the jurisdictional Sessions Judge,
if the procedures laid down by the Apex Court have not been followed. However, in the
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present case, no such complaint, whatsoever, has also been made.
15. This Court upon complete evaluation of the materials available on record, is of the
considered view that this is not a case of Police fake encounter.
16. That being so, this Court finds no merit in the writ petition and accordingly, the
writ petition stands dismissed.
17. No cost(s).
JUDGE
Comparing Assistant
