Police Encounter Was Avoidable Had State Acted In A Timely Manner: Gauhati High Court Awards ₹25 Lakh Compensation To VIctim's Family
Sanchayita Lahkar
The Gauhati High Court Division Bench of Justice Kalyan Rai Surana and Justice Rajesh Mazumdar directed the Union of India and the State of Assam to pay monetary compensation to the wife and children of a cultivator from Chirang district who died from gunshot injuries during a police operation on 28 December 2016. While declining to order a fresh or further inquiry at this stage, the Court held that the death was avoidable and that the failure to act promptly on prior intelligence inputs—along with the absence of documented records despite Army accompaniment—resulted in an infringement of Article 21. It noted that timely action was expected and that institutional laxity helped create the conditions for the exchange of fire.
The petition was filed by the deceased’s brother after a cultivator from Chirang district died on 28 December 2016 during a police operation near the Laopani jungle area under Kokrajhar district. The family alleged that he left home on 27 December 2016 after receiving a phone call, went missing, and they later learnt he had been killed in a “fake encounter”; after post-mortem formalities, the body was handed over.
A police outpost in-charge lodged an FIR on 28 December 2016 stating that a police team laid an ambush and, when suspected cadres arrived and allegedly fired, the team returned fire. The FIR stated that one injured person was found and taken to a civil hospital where he was declared brought dead.
The wife lodged a separate FIR the same night, leading to registration under Sections 120B/302 IPC. The petitioner sought a neutral investigation and a judicial enquiry. State affidavits referred to intelligence inputs, witness examinations, forensic testing of seized exhibits, and an order for a magisterial enquiry dated 31 December 2016. The Union’s affidavit stated the Army only guided the police and did not fire.
The Court noted the competing versions placed before it at the outset: “At the outset, it is important to note that while the Writ petition was initiated on the premise that the brother of the petitioner had been illegally taken into custody by the state authorities and thereafter had been put to death, the case projected by the respondents is that the brother of the petitioner was killed in an ambush laid by the state authorities when he was trying to deal illegally in arms and ammunition with underground militant outfits.”
On the intelligence material, the Court recorded: “Records reveal that certain intelligence reports were received by the police authorities manning the district of Kokrajhar to the effect that one Ratan Narzary @Rotan Narzary, who was the brother of the petitioner, was making attempts to sell some ammunition of particular makes of weapons to underground extremists and that the deal was not being settled. There were further intelligence inputs that some attempt to deal in the ammunition may take place on or about 27th or 28th December 2016.” It further stated: “There are ample documentary records made available to impress that there were several intelligence reports that the deceased had several rounds of ammunition of sophisticated firearms with him and that he intended to sell them to underground extremists. Inputs placed before this Court are dated 09-11-2016 and 26-12-2016.”
On how the operation was described by different authorities, the Court observed: “What is intriguing in the projection of the respondents is that while the State Police authorities have been repeatedly referring to a ‘joint operation’ with the 7th Sikh Light Infantry, the affidavit filed by the Army authorities totally deny such a joint operation and rather, it is asserted by them that the Army unit was requested only to guide the Police party to the eastern bank of the river and that the Army did not participate in any encounter or ambush laid by the police personnel.”
It added: “Two aspects of the matter are revealed, first that there is no documentary record available that the leader of the ‘search and ambush’ had requested the Army authorities for guidance and second, that the Army authorities admit that they provided so called ‘guidance’, which included accompanying the State Police authorities, without keeping any documented record of such activity. No documents have been placed before the Court to show that the Additional SP (HQ), Kokrajhar, had kept any record of his intent to conduct a search and ambush on the basis of intelligence reports on that fateful day.”
In assessing the timing and manner of action, the Court stated: “This Court cannot ignore that the pursuit of the deceased does not fall in the category of ‘hot-pursuit’ since, admittedly it did not arise all of a sudden, leading to an encounter, rather the state had specific intelligence inputs as long back as in 09.11.2016 itself and even on 26.12.2016, there was specific input about the deceased assuring a particular person about supply of ammunition.”
It recorded gaps in what had been examined: “The reasons for not taking immediate action on the specific intelligence inputs and the reasons for the delay in attempting to intercept the suspect and the reasons for attempting to do so only when there was a high probability of the suspect being in actual possession of firearms, which he would, in all probability, use upon the intercepting party, was not probed by any of the investigating agencies.”
In its central findings on avoidability and the public law remedy, the Court stated: “This Court is of the opinion that in the facts and circumstances of the case, timely appropriate action on the intelligence inputs was expected from the state instrumentalities, which if done, could have led to the interception of the suspect at a prior point of time and avoided the loss of life of the deceased. The laxity displayed while acting on the intelligence inputs and the sudden and hurried decision to lay an undocumented ambush played a vital role in creating a situation which led to exchange of fire between the deceased and the police, leading to his death. We stop short of concluding that the ambush was laid to achieve predicted outcomes. The encounter was, in the opinion of this Court, avoidable had timely action been taken on the intelligence inputs and if that be so, it has to be held that the fundamental right of the deceased and his legal heirs under Article 21 of the Constitution have been infringed, deserving relief in the form of appropriate compensation.”
The Court ordered: “we direct respondent No. 1, The Union of India… Ministry of Defence and the respondent No. 4, the State of Assam… Home Department to respectively pay a sum of Rs. 5,00,000/- each” to the deceased’s widow, and “a sum of Rs. 2,50,000/- by each of respondent no 1 and respondent no 4 respectively to each surviving child” as compensation. The payment shall be made by way of demand drafts… within a period of one month from the date of receipt of a certified copy of this order,” and that the drafts “shall be handed over… upon proper identification through the office of the District Commissioner. Writ petition accordingly stands allowed to the extent indicated herein above.”
Advocates Representing the Parties
For the Petitioners: Mr. A. Choudhury, Advocate
For the Respondents: Mr. D. Nath, Senior Government Advocate; Mr. B. Deka, Central Government Counsel
Case Title: Anil Narzary v. The Union of India and 7 Ors.
Neutral Citation: GAHC010122912017
Case Number: WP(C)/1098/2017
Bench: Justice Kalyan Rai Surana, Justice Rajesh Mazumdar.
