W. P. No. 12235(W) of 2003. Case: Smt. Mita Pal and Anr. Vs Union of India and Ors.. High Court of Calcutta (India)

Case NumberW. P. No. 12235(W) of 2003
CounselFor Petitioners: Paresh Ch. Maity and B. C. Simai, Advs. and For Respondents: R. N. Das, P. K. Sen, D. Purkayastha and Ranjan Kumar Roy, Advs.
JudgesAmit Talukdar and Sankar Prasad Mitra, JJ.
IssueConstitution of India - Articles 21, 226
Citation2006 CriLJ 1647
Judgement DateOctober 07, 2005
CourtHigh Court of Calcutta (India)

Order:

  1. Leave is granted to the learned Advocate for the petitioners to amend the cause title.

    Just desert.

  2. While appreciating the anguish of the Petitioner, who has come up before this Court with a lurking apprehension of the loss of her Soul Mate, that should be the prime consideration of this Court.

  3. Justice is always above law; yet it has to be in accordance with law.

  4. We need not be caught between Scylla and Charybdis since we feel in this case we have to put justice above all. Normal claptrap of legal niceties have to be jettisoned so as to live up to the Constitutional mandate of the concluding line of Art. 226(1) "and for any other purpose" which has been sought to be invoked before us.

  5. In this Writ Application in the nature of a Habeas Corpus the Petitioners-Smt. Mita Pal, the young wife of Sepoy Tapas Kumar Pal along with her minor child being represented by her, has sought the following directions:

    "

    1. Issue a Writ and/or in the nature of a Writ of Habeas Corpus directing the Respondents and each one of them and/or their subordinate and/or their officers to:-

    i) Produce the Body of Tapas Kumar Pal the husband of petitioner No. 1 before this Hon'ble High Court at Calcutta forthwith; and

    ii) Hand over the Mortal remains of the body happened to be murdered in the Army barrack on 8th July, 2002;

    iii) Issue directions by directing the Central Bureau of Investigation or any other Independent Agency, like Central Vigilance Commission apart from directing to form a High Power Committee of Senior Officers of Brigadier and equivalent rank drawn from Army, Navy and Air Force to enquire and submit reports in a manner the husband of the Petitioner No. 1 has been murdered in Army barrack on 8th July, 2002 and in a manner suppressed and hush-up such offence by declaring deserter by the Commanding Officer of the 664 ASC Coy (TK TP tr) Type-'C' C/o. 56 APO;

    b) Issue a Writ and/or order and/or Direction in the nature of Mandamus directing the Central Bureau of Investigation or any or any other Independent Agency like Central Vigilance Commission to investigate/enquire in the instant case and initiate appropriate criminal prosecution against the respondents and/or other erring officers and submit a report before this Hon'ble Court within a stipulated time and by further directing the respondents to form a High Power Committee consisting of Senior Officers of Brigadier Rank and equivalent rank drawn from Army, Navy and Air Force to enquire and investigate in a manner Tapas Kumar Pal the husband of the Petitioner No. 1 has been murdered and hushed-up with suppression in the name of deserter;

  6. Gleaning through the averments made in the Writ Application vis-a-vis the Returns speak about the facts of the husband of the Petitioner No. 1, Shri Tapas Kumar Pal being in the employment of the Army Authorities as a Sepoy Driver, attached to the Unit No. 664 Army Service Corps Coy (TK TP tr) Type-'C' C/o. 56 APO at Ambala Cantonment since 29-6-95. He was married with the Petitioner No. 1 on 15-7-98 and from the said wed-lock the Petitioner No. 2 was born. That Shri Tapas Kumar Pal, husband of the Petitioner No. 1 obtained a month's leave and came to his village home at Bankura and after expiry of the said leave he left Bankura on 6-5-02 for joining his Unit. Since he was unwell, he had to be hospitalized at the Military Hospital, Ambala and was treated there. On 7-7-02 she spoke over telephone from the Military Hospital and informed his family that he has recovered after receiving treatment and was to be discharged on the very next date and he would be joining active duty in his Unit.

  7. Up to this it was the humdrum narration of a man's life (husband of the Petitioner No. 1).

  8. Clouds began looming large on the mind of the Petitioner No. 1 when her geriatric Father-in-law received a copy of a Letter dated 19-7-02 (Annexure-P-1), addressed to the Superintendent of Police, Bankura. It was learnt from the said letter that the husband of the Petitioner No. 1 absented himself without leave on and from 9-7-02. As it was beyond the comprehension of the entire family that after speaking over telephone on 7-7-02 how could he disappear after joining his duty on 8-7-02 without any rhyme or reason, agony gripped the Petitioner.

  9. Compounding the agony of the Petitioner No. 1 the Respondent No. 4 informed that her husband was declared as a deserter by their letter dated 19-8-02, 30-1-03 and 27-2-03 (Annexure-'P-2').

  10. It is the further case of the Petitioner No. 1 that her Father-in-law and brother-in-law went to meet Respondent No. 4 at Ambala on 26-10-02 to enquire about whereabouts of her husband. But the Respondent No. 4 refused to meet them.

  11. Worsening the situation she received two anonymous letters (Annexure-'P-6') declaring that on 8-7-02 10/12 Army Jawans quarrelled between themselves and her husband was beaten to death and his body was sent to Sadar Police Station for post-mortem examination.

  12. Added to her misery was the death of her Father-in-law on 22-2-03 who could not bear the shock of the purported loss of his son.

  13. Repeated representations before the Army Authorities to bring out the truth yielded no result.

  14. Left to fend for her soul and her little child in the absence of her Soul Mate in acute distress she has stood before the Majestic Portals of Justice.

  15. Shri Paresh Chandra Maity learned Counsel appearing in support of the Writ Application duly assisted by Shri B. C. Simai submitted that the husband of the Petitioner No. 1, Shri Tapas Kumar Pal was released from the Ambala Cantonment Hospital on 8-7-02 and was thereafter found missing. He submitted that in Annexure-P/1 the Respondent No. 4 showed that on and from 9-7-02 the husband of the Petitioner No. 1 absented himself and thereafter was missing. The Army Authorities were trying to cover up the entire issue by taking different stands and ultimately declaring the husband of the Petitioner No. 1 as a deserter. He has submitted that it is quite clear from the Supplementary Affidavit relied upon by the Union of India that the husband of the Petitioner No. 1 was murdered and to screen the offence he was declared as a deserter so that no benefit could be given to his wife and minor son.

  16. According to Shri Pal if the husband of the Petitioner No. 1 had deserted his post why the Identity Card would be found in the garage in November, 2002.

  17. Lastly, Shri Pal submitted that the Deponent, who affirmed the Return on behalf of Col. J. P. Srivastav in his capacity as Respondent No. 4, had filed an incorrect Affidavit which was by itself highly illegal act and the two Affidavits filed were false.

  18. Shri Pal, learned Counsel for the Petitioners referred to the decisions of Deputy General Manager v. Smt. Sudershan Kumari and others, AIR 1997 SC 1902: (1997 Cri LJ 1931) and Dhananjay Sharma v. State of Haryana, AIR 1995 SC 1795 in support of his aforesaid contentions.

  19. Accordingly, Shri Pal has prayed for necessary directions.

  20. Shri Rathindra Nath Das, learned Senior Counsel appearing for the Respondent Nos. 1, 2 and 4 along with Shri Pradip Kumar Sen submitted that at the very out set that the prayer (a) of the Writ Application cannot be considered under any circumstance. But, Shri Das, learned Senior Counsel was agreeable to the relief sought for in Prayer (b) of the Writ Application and he further submitted that if there is any direction by the Court for payment of the dues accrued in favour of the husband of the Petitioner No. 1 the same can be complied with. He has further agreed to an enquiry to be conducted by the Respondents Nos. 6 and 7.

  21. Learned Senior Counsel for the Union of India submitted that the husband of the Petitioner No. 1 was admitted in the Hospital on 29-6-02 and after his discharge from the Hospital on 8-7-02 he absented himself from duty and ultimately he was declared as a deserter on and from 13-8-02. Since the husband of the Petitioner No. 1 was not traceable a Court of enquiry was held where he was found to be a deserter.

  22. Learned Senior Counsel for the Union of India further submitted that there may be some discrepancies in the Discharge Certificate but it was not material and did not have any effect in the issue in question. He submitted that the Petitioner No. 1 would be entitled to all the benefits if it is proved that her husband is not alive; but, in the event he is continuing to be absconding there is technical difficulty in releasing payment in favour of the Petitioner No. 1 as death has to be ascertained at first.

  23. In course of hearing of this Application before the First Bench leave was granted to implead the Officer-in-Charge, Mahesh Nagar Police Station, Ambala Cantt. as a party/respondent and pursuant thereof notices were sent.

  24. Accordingly, in terms of the direction of the First Bench the said Officer was impleaded as...

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