Gauhati High Court
WA/138/2022 on 27 November, 2025
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GAHC010184492020
2025:GAU-AS:16147-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WRIT APPEAL NO.138 OF 2022
The Commissioner & Secretary to the Government of
Assam, Revenue & Disaster Management Department,
Dispur, Guwahati - 781006, District: Kamrup (Metro),
Assam.
.....Appellant
-Versus-
1. Kaphot Dam,
Wife of Sri Santosh Dam,
Resident of Village: Zirikindeng, PO: Zirikindeng, PS:
Kheroni, District: Karbi Anglong, Assam, Pin - 782448.
.....Respondent
2. The State of Assam, represented by the Chief Secretary
to the Government of Assam, Dispur, Guwahati - 781006,
District: Kamrup (Metro), Assam.
3. The Commissioner & Secretary to the Government of
Assam, Home & Political Department, Dispur, Guwahati -
781006, District: Kamrup (Metro), Assam.
4. The Director General of Police, Assam,
Ulubari, Guwahati - 781007, District: Kamrup (Metro),
Assam.
5. The Deputy Commissioner, Hamren, District: Karbi
Anglong, Assam, Pin - 782486.
6. The Superintendent of Police, Hamren,
District: Karbi Anlong, Assam, Pin - 782486.
7. The Officer-in-Charge, Kheroni Police Station, PO:
Kheroni, District: Karbi Anglong, Assam, Pin - 782440.
8. The Officer-In-Charge, Zirikindeng Police Station,
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Present PS: Hamren, District: Karbi Anglong, Assam, Pin
- 782448.
.....Proforma Respondents
-B E F O R E -
HON'BLE THE CHIEF JUSTICE MR. ASHUTOSH KUMAR
HON'BLE MR. JUSTICE ARUN DEV CHOUDHURY
For the Appellant(s) : Mr. R. Borpujari, Standing Counsel, Revenue & Disaster
Management Department.
For the Respondent(s) : Mr. P. Mahanta, Advocate for respondent No.1.
Date of judgment : 27th November, 2025.
JUDGMENT & ORDER (ORAL)
(Ashutosh Kumar, CJ)
We have heard Mr. R. Borpujari, learned Advocate for the
appellant/State and Mr. P. Mahanta, learned Advocate for the
respondent No.1.
2. By the impugned judgment dated 28.03.2019 passed by a
learned Single Judge of this Court in WP(Crl.) No.3/2017, the State has
been directed to pay Rs.10,00,000/- (Rupees Ten Lakhs) to the next kith
and kin of the victim as compensation for the disappearance of the
victim.
3. A habeas corpus petition was filed by one Smti. Khapot Dam,
seeking a direction to the respondents to produce her husband, namely,
Santosh Dam, who allegedly was kidnapped by a group of persons
belonging to certain unlawful organization. The husband of the writ
petitioner remained traceless for a long time despite the police claiming
to investigate the case pursuant to the FIR in that connection registered
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at Kheroni Police Station as Kheroni Police Station Case No.11/2008 under
Sections 120(B)/121/123/171/365/326/302/307 of the Indian Penal Code
read with Section 25(1-b)/27 of the Arms Act.
4. The family of the victim, even while the investigation was going
on, was asked to pay a ransom amount, which was paid also, but the
victim could not be recovered. With the passage of 7(seven) years from
the date of disappearance of the victim, he was presumed to be dead.
The victim had not resurfaced till the time the writ petition was disposed
off.
5. The learned Single Judge, while dealing with that fact situation,
found that the family of the victim was required to be compensated for
the loss of life and the failure of the State to have him recovered. The
learned Single Judge took into account that the award of compensation
in the public law jurisdiction is without prejudice to any other action, like
civil suit for damages, which is lawfully available to a victim or the heirs of
the deceased victim with respect to the same matter for the tortious act.
The quantum of compensation will, of course, the learned Single Judge
observed, depend upon the peculiar facts of each case and no
straitjacket formula could be evolved. The judgment impugned contains
references from the decisions of the Supreme Court in D.K. Basu -Vs- State
of West Bengal :: (1997) 1 SCC 416; Rudal Sah -Vs- State of Bihar & Anr. ::
(1983) 4 SCC 141 and other cases, where for the deprivation or for breach
of fundamental rights of a citizen, compensation was awarded.
The judgment does not refer to any lapses on the part of the
State, except to the extent that there was a loss of life in a welfare State
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where it is one of the obligations of the State to protect the life and
dignity of its citizens.
6. Emboldened by such observation in the impugned judgment
that the State, in its Police Department, was not particularly to be
blamed for the disappearance of the victim or his death; the
Commissioner & Secretary to the Government of Assam, Revenue &
Disaster Management Department has preferred the present appeal.
7. Mr. P. Mahanta, learned counsel for the respondent No.1 resisted
the maintainability of the appeal in the first instance on the ground that
when the Gauhati High Court Rules classify a habeas corpus petition as a
criminal proceeding and the impugned judgment having been delivered
in a habeas corpus petition, no intra-Court appeal ordinarily would lie.
The other ground raised on behalf of the respondent No.1 about
maintainability of the appeal is that an Officer of the Government does
not represent the State and, therefore, for non-joinder of necessary party,
the appeal ought not to be maintained.
In support of the afore-noted contention, Mr. Mahanta has
drawn our attention to the judgment of the Supreme Court in Chief
Conservator of Forests, Government of A.P. -Vs- Collector & Ors. :: (2003) 3
SCC 472. In the afore-noted case, the issue of maintainability was raised
as a preliminary objection for the appeal having been filed by the Chief
Conservator of Forests. Taking reference of Article 300 of the Constitution
of India, Section 79 and Rule 1 of Order 27 of the Code of Civil
Procedure, 1908, the Supreme Court held that every post in the hierarchy
of posts in the Government set-up, from the lowest to the highest, is not
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recognised as a juristic person nor can the State be treated as
represented when a suit/ proceeding is in the name of such offices/posts
or the officers holding such posts. Therefore, in the absence of the State
in the array of parties, the cause will be defeated for non-joinder of a
necessary party to the lis, in any Court or Tribunal.
8. Mr. Mahanta argues that it was made clear in the afore-noted
judgment that this principle, however, would not apply to a case where
an official of the Government acts as a statutory authority and sues or
pursues further proceeding in its name because in that event, it will not
be a suit or proceeding for or on behalf of a State but by the statutory
authority as such. The appellant herein, it was pointed out, is only an
Officer heading a Department and not representing any statutory body,
which would be permitted to carry on the proceedings in the Court of
law.
9. We do not find merit in either of the objections for 2(two) reasons,
namely, that maintainability depends not on the nature of relief sought or
the rubric of the petition preferred before a Court of law but the nature
of jurisdiction exercised by the Judge, civil or criminal. In a habeas corpus
petition, the learned Single Judge, after having discussed the facts of the
case, took recourse to the public law remedy available to a citizen and
awarded compensation for violation of Article 21 of the Constitution of
India. While doing so, the Court was not for the first time blazing the trail
but only followed the dictum of the Supreme Court in Rudal Sah (supra);
Smt. Nilabati Behera alias Lalita Behera -Vs- State of Orissa & Ors. :: (1993)
2 SCC 746 and other cases where compensation was granted in habeas
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corpus petition and in cases relating to custodial death. The nature of the
judgment impugned against in the present appeal, clearly blurred the
distinction of civil and criminal cases and the order fell in the domain of
public law, exercised by the learned Single Judge under Article 226 of
the Constriction of India against which an intra-Court appeal cannot be
said to be proscribed.
So far as the second objection of the respondent No.1 is
concerned, true it is that the Commissioner & Secretary to the
Government of Assam, Revenue & Disaster Management Department is
not akin to State but the State has been arrayed in the memo of parties
as a proforma defendant and in the present case, since the
compensation had to be paid by the Revenue & Disaster Management
Department and already an amount of Rs.3,00,000/- (Rupees Three
Lakhs) had been paid under a Scheme to the family of the victim by the
Revenue & Disaster Management Department, such an objection
cannot be sustained.
10. After having said that, we have taken into account the
submissions urged on behalf of the appellant/State by Mr. Borpujari,
learned counsel. He has submitted that there is no clear finding in the
judgment about any lapse on the part of the State. In fact, the State had
done its best by timely registering the case and continuing with the
investigation. It was only fortuitous that the victim could not be traced
and, therefore, presumed to be dead. Those were the times when ultra
groups were marauding villages and hinterlands for proving and justifying
their demands. The entire State energy was directed towards stopping
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them from creating further chaos in the society. It is not the case of the
respondent, Mr. Borpujari has argued, that the investigation was lopsided
or was not conducted with sincerely or there had been any lackadaisical
approach on the part of anyone of the functionaries of the Police
Department. In such a situation, compensation ought not to have been
awarded, more so, when under the Scheme of the State of Assam, the
family of the victim had already been paid Rs.3,00,000/-.
The other argument raised on behalf of the appellant is that the
occurrence took place in the year 2008. The family of the victim survived
the stormy days. That was not taken into account while fixing a high
quantum of damages. Mr. Borpujari submits that a deprivation of life
ought not to be converted into an opportunity to gain pecuniary
advantage.
11. After having heard the learned counsel for the parties, we are of
the view that the learned Single Judge was absolutely justified in passing
the order directing the State to pay compensation for a serious violation
of Article 21 of the Constitution of the family of the victim. True it is that
the State, taking a pro-active step, paid to the family an amount of
Rs.3,00,000/- under a Scheme, but in public law remedies, the law is very
clear that a Court of law can definitely look at what has been paid to
the victim but such exercise would only be for determining the quantum
and not for denying the relief.
12. Payment under a Scheme or ex-gratia does not bar
constitutional compensation.
13. So far as the quantum of compensation is concerned, the factors
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which have weighed with us in rejecting the claim of the appellant/State
is the long disappearance of the deceased; the trauma faced by the
family for a long time; the family not being able to even perform the last
rites of the victim and he was only presumed to be dead because of the
passage of time; to some extent failure of the State to investigate the
case and book the culprits, and the inflation and the current price index.
Taking all these into account, we do not find the quantum of
compensation of Rs.10,00,000/- (Rupees Ten Lakhs) to be unreasonable
or excessive. The amount of compensation has not yet been paid
perhaps for the supposed intervention of the Court as this appeal has
been admitted for hearing.
14. The appellant would be under an obligation to pay the
compensation, so awarded, to the respondent No.1 within a period of
60(sixty) days, failing which it would be open for the respondent No.1 to
approach the relevant forum for getting the order executed.
15. With the above observation and direction, the writ appeal stands
dismissed.
JUDGE CHIEF JUSTICE
Mukut Digitally signed
by Mukut Sharma
Sharma Date: 2025.11.28
11:47:46 +05'30'
Comparing Assistant
