Page No.# 1/6 vs The State Of Assam And 6 Ors
2026 Latest Caselaw 666 Gua

Gauhati High Court

Page No.# 1/6 vs The State Of Assam And 6 Ors on 3 February, 2026

Author: Michael Zothankhuma

Bench: Michael Zothankhuma

                                                                    Page No.# 1/6

GAHC010116472025




                                                         2026:GAU-AS:1363-DB

                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : W.P.(Crl.)/18/2025

         AZIRAN NESSA
         W/O- MONUWAR HUSSAIN @ BABUL ALI, PERMANENT RESIDENT OF
         VILL. NO. 3 KANDHABARI, P.O. MADHYAM BARKHETRY, P.S.
         MUKALMUWA, DIST. NALBARI, ASSAM AND PRESENTLY RESIDING AT
         NOWAPARA SATGAON, NEAR SATGAON KABARASTHAN, P.O. PANJABARI,
         P.S. SATGAON, DIST. KAMRUP(M), ASSAM



         VERSUS

         THE STATE OF ASSAM AND 6 ORS.
         TO BE REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT
         OF ASSAM, DISPUR, GUWAHATI-6.

         2:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM
          HOME AND POLITICAL DEPARTMENT
          DISPUR
          GUWAHATI-6.

         3:THE DIRECTOR GENERAL OF POLICE
         ASSAM
         ASSAM POLICE HEADQUARTERS
          ULUBARI
          GUWAHATI-07.

         4:THE SUPERINTENDENT OF POLICE
          KAMRUP(R)
          OFFICE OF SUPERINTENDENT OF POLICE
         AMINGAON
          KAMRUP RURAL
         ASSAM
          PIN- 781031.
                                                                          Page No.# 2/6

             5:THE DISTRICT COMMISSIONER
              KAMRUP(R) AT AMINGAON
              PIN- 781031
             ASSAM

             6:THE OFFICER-IN-CHARGE OF BAIHATRA CHARIALI POLICE STATION
              KAMRUP(R)
             ASSAM
              PIN- 781381.

             7:THE OFFICER-IN-CHARGE OF SUWALKUCHI RIVER POLICE STATION
             ASSAM
              PIN- 781103

Advocate for the Petitioner   : G UDDIN, MR. I HUSSAIN,P ADHIKARI,MR A K AZAD

Advocate for the Respondent : GA, ASSAM,




                                   BEFORE
                 HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
                   HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI

                                           ORDER

03.02.2026 (Kaushik Goswami, J)

Heard Mr. A.K. Azad, learned counsel appearing for the petitioner. Also heard Ms. S. Sharma, learned Government Advocate, appearing for the State respondents.

2. The petitioner (wife of one Manuwar Hussain @ Babul Ali) has invoked the extraordinary jurisdiction of this court under Article 226 of the Constitution of India, seeking compensation and a direction for judicial enquiry, alleging that her husband died/disappeared while in police custody.

3. The pleaded case of the petitioner is that the husband of the petitioner was arrested on 10.07.2024 in connection with the Baihata Chariali P.S. Case No. 182/2024. It is alleged that on the following day, information surfaced Page No.# 3/6

through media reports that he had 'escaped' from police custody by jumping into a river while being taken by police to his residence for search and recovery.

4. On earlier consideration of the matter, this court noticed the stand of the State in its affidavit-in-opposition filed on behalf of the respondent No. 4 [The Superintendent of Police, Kamrup (R)], that the detenue, while being transported, attacked on-duty police personnel and jumped into the water. Considering the seriousness of the allegation, this court, by order dated 23.07.2025, directed the jurisdictional District Magistrate to have a magisterial enquiry conducted and to place a report before the court. Relevant paragraphs of the said order dated 23.07.2025 read as under:

"2. The case of the petitioner is that she is wife of Monowar Hussain @ Babul Ali who was taken into custody by the police personnel of Baihata Chariali Police Station in connection with Baihata Chariali PS Case No.182/2024. It is alleged that on 10.07.2024, the petitioner's husband had disappeared/died in custody of the Baihata Chariali Police Station.

3. It is the case of the petitioner that she came to know from the media report that her husband had escaped from the police custody by jumping into the river while he was being taken by the police for investigation. Accordingly, projecting that husband of the petitioner died, petitioner is seeking compensation from the State and for initiating a judicial enquiry into the missing/ death of the husband of the petitioner by registration of FIR in compliance with legal requirements.

4. From the affidavit-in-opposition filed by the respondent No.4, it appears that the husband of the petitioner, who is an accused in several cases had attacked the on duty police and jumped into the river and accordingly Sualkuchi River PS Case No.47/2024 under Section 132/121(1)/262 of the BNS,2023 was registered on the basis of FIR by police and accordingly Charge Sheet No. 61/2024 was submitted under Section 132/121(1)/263/303(2) of the BNS, 2023 was submitted against Monowar Hussain @ Babul Ali.

5. Pending further order as may be deem fit and proper, in view of provision of Section 196(2) of the BNS, 2023, the Court is inclined to direct the State including the District Magistrate, Kamrup, Amingaon to pass an Page No.# 4/6

appropriate order authorising a Magistrate having jurisdiction to make an enquiry as regards the circumstances in which the husband of the petitioner, namely, Monowar Hussain @ Babul Ali had gone missing from 10.07.2024 and to submit a report within a period of 45 days.

6. The Court reserves the right to pass any further other order as may deem fit and proper as circumstances so demand. The learned Senior Additional Government shall download a copy of this order to the District Magistrate, Kamrup, Amingaon to do the needful in terms of the order.

7. The learned Additional Senior Government Advocate has produced a copy of instruction dated 18.07.2025 highlighting that in thirteen other cases, appearance of the petitioner is pending for production by way of NBWA. It is projected that the husband of the petitioner faces serious charges like dacoity, rape etc. The said instruction is made a part of the record."

5. The Magisterial Enquiry Report dated 20.07.2025, in original, along with a photocopy of the same, has now been submitted before this court by Ms. S. Sharma, learned Government Counsel. The photocopy is kept on record and marked as "X", and the original is returned back to Ms. S. Sharma, learned Government Counsel. The said report is also being furnished to the learned counsel for the petitioner.

6. The report reveals that the detenue was being transported by the boat across the Brahmaputra River as a part of the investigation. While police personnel were escorting him, he suddenly assaulted two police officials. Taking advantage of the situation, he jumped into the river in an attempt to escape. Immediate search and rescue operations were undertaken, but he could not be traced. No evidence of custodial assault, torture, or foul play was found. The enquiry further notes that the detenue had prior criminal antecedents, including instances of violent resistance and attempts to escape from police custody in other criminal cases.

Page No.# 5/6

7. It is well settled that the writ court in exercise of jurisdiction under Article 226 of the Constitution of India does not conduct a trial on disputed questions of fact requiring oral evidence. Compensation in public law is granted only where violation of fundamental rights through state action is established by clear material, particularly in custodial death cases.

8. In the present case, pursuant to judicial direction, a magisterial enquiry has been conducted into the circumstances leading to the alleged custodial disappearance of the petitioner's husband. It appears that during the magisterial enquiry, witnesses were examined, records scrutinized, and a detailed report has been placed before this court. The report does not disclose any custodial violence, illegal detention, or foul play on the part of the police personnel. Once such a fact-finding exercise, conducted under statutory authority and under the supervision of the jurisdictional district magistrate, has addressed the very issues raised in the writ petition, the prayer for directing a further judicial enquiry does not survive. In the absence of material demonstrating that the enquiry is biased, perfunctory, or violated by procedural irregularity, this court finds no justification to order a parallel or roving probe, which would amount to reopening concluded factual issues without foundation.

9. That apart, public law compensation arises where custodial death or disappearance is shown to be a result of unlawful state action or failure of duty. The present material indicates an escape attempt by the detenue, who voluntarily jumped into a major river while in transit and assaulted police personnel in the process. The unfortunate consequence of the incident by itself does not establish a constitutional tort in the absence of proof of illegal custody, torture, or negligence.

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10. We are conscious that the loss or disappearance of a family member is a grave human tragedy. However, judicial orders must rest on legal evidence, not sympathy.

11. In view of the magisterial enquiry findings and in the absence of any material demonstrating custodial violence, negligence, or suppression of facts, this court finds no ground to grant compensation or to direct a further judicial enquiry. Accordingly, the writ petition stands dismissed.

12. It is, however, observed that if any fresh material comes to light, it shall be open to the petitioner to seek remedy in accordance with law.

                                   JUDGE                      JUDGE



Comparing Assistant