Court calls businessman’s custodial death ‘barbaric’, awards widow Rs 25 lakh compensation

The Gauhati High Court has awarded Rs 25 lakh compensation to the widow of a businessman allegedly abducted, tortured and killed by police personnel, holding that compensation for a custodial death can be granted without waiting for criminal proceedings against the accused officials to conclude.

Justice Kalyan Rai Surana and Shamima Jahan noted that the accused police personnel had not only allegedly conspired to abduct and torture the businessman but had also buried his body in an attempt to conceal the crime. The bench said that their actions demonstrated the “barbaric” nature of the acts allegedly committed by them, which had the effect of “shaking the judicial conscience”.

“It is not necessary to wait till the conclusion of the criminal trial, to reach the conclusion that the police officers were in fact responsible for the custodial death of the deceased (businessman) and then pay compensation, as is contended by the respondent state,” the June 3 order read.

The bench held that under the public law remedy, compensation is allowed for victims even if they are prisoners, undertrials or individuals with criminal history.

The high court was hearing an appeal of one Joyanta Maibangsa who was seeking directions to authorities for payment of compensation of Rs 50 lakh for the custodial death of her businessman husband.

‘Gross, unfortunate’

The high court observed that in every case of death, various circumstances engulf, which is very gross and very unfortunate.

It was added that any preventable death caused due to negligence without regard to the safety and life of an individual is totally uncalled for and for the said reason courts have evolved public law remedy to award compensation.

The court pointed out that compensation can be a way of making monetary adjustments for the wrong done or by way of exemplary damages exclusive of any amount recoverable in a civil action based on tortious liability.

The court emphasised that compensation for violations of human and fundamental rights has been developed as a public law remedy to provide timely relief to aggrieved persons, instead of forcing them to endure the vagaries of long-drawn civil litigation.

The court held that under the public law remedy, compensation is allowed for victims even if they are prisoners, undertrials or individuals with criminal history.

The court held that compensation can be awarded for violation of human rights under the public law remedy and the same can be awarded even before the initiation of trial against the accused persons.

‘Trial yet to start’

The high court noted that the trial is yet to start against the chargesheeted accused persons, but compensation in public law remedy can be granted.

The court noted that around six years have elapsed since the death of the victim, but the petitioner would still require enough means to educate her children and to bring them up.

It was found that the police personnel concerned had kidnapped the victim and taken to custody without complying with the mandate of law and violated the provisions of the Constitution.

It was noted that the victim was killed and the police personnel concerned, purportedly under the supervision/direction of the superintendent of police, also disposed of the dead body by burying it.

The court emphasised that it was only by chance that the dead body could be recovered.

The high court held that the state will be at liberty to recover the palliative award of Rs 25 lakh only from those erring officials who are found guilty of the offence.

The court further directed that the petitioner or her children will be entitled to compensation under the Assam Victim Compensation Scheme, in addition to the amount awarded by this court.

Kidnapped, found dead

The case of the petitioner was that her husband was a businessman by profession and he was the owner of five vehicles, including a Bolero which he had purchased on loan from Indusland Bank on a monthly installment amount against the said vehicles at Rs 3.59 lakh only per month.

The petitioner stated that while she along with her husband and her three minor children were living in their residence, five gunmen in civil dress, riding a Bolero vehicle, came to their residence on April 24, 2020 at around 6 pm.

They allegedly asked for the whereabouts of her husband, expressing the reason that they needed his help in lifting their vehicle, which was stuck nearby, and when her husband came out, the said personnel, who were later identified as police personnel, forcefully picked him up and fled away in the said vehicle.

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The petitioner, on seeing her husband being forcefully taken away, lodged an FIR alleging that her husband was kidnapped and the said case was registered. However, it was claimed that the police did not initiate any action even after registration of the said case and further due to the ongoing COVID pandemic, the petitioner could not pursue the case nor could she find out her husband and as such.

She also submitted a letter on April 28, 2020, through e-mail, before the Chief Justice of Gauhati High Court, with a prayer that the state government/central government be directed to produce her husband before a judicial magistrate as she had information that he was detained by security forces.

Later, on April 30, 2020, the Gauhati High Court took up the matter as a suo motu case and directed the Assam police to constitute a team to trace him. However, on the same day, the businessman’s body was recovered near Lailing village. The petition stated that the body bore severe injuries and was partially burnt.

The petitioner again wrote a letter to the Chief Justice of Gauhati High Court seeking direction to the state government for conducting a high-level enquiry or a CBI enquiry.

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By a May 4 order, the high court constituted a special investigation team headed by deputy inspector general of police directing to investigate the alleged abduction and murder of the petitioner’s husband.

She also filed an additional FIR in May 2020 stating the recovery of her husband’s dead body and involvement of police officials in the incident. The case was later transferred to the CID for investigation.

In October 2021, the CID filed a chargesheet against eight accused, including senior police officers, alleging that the businessman was illegally detained, tortured in custody and died while in police custody.

The high court subsequently closed the earlier suo motu proceedings in October 2021 after noting that the chargesheet had been filed.

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Later, the woman submitted a representation seeking compensation for the custodial death of her husband on November 23, 2023.

Arguments

Appearing for the woman, advocate B D Das submitted that the victim had two minor daughters and one minor son and that his monthly income was Rs 5 lakh only and that the loan amount had also accumulated to Rs 95.65lakh.

It was added that in the instant case, police officials were involved and in a conspiracy being entered into by them, the victim was picked up, tortured, which finally led to his death.

Representing the authority, additional advocate general B Goswami argued that the fact of custodial death as submitted by the petitioner was not proved or established till date and that three criminal cases are pending before the trial court.

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He further submitted that whether the victim died during his custody by the police officials is not proved and due to the said reason, compensation for the said alleged incident cannot also be given, before the said criminal cases reaches its finality.