Justice Achintya Malla Bujor Barua and Justice Robin Phukan stated, “Without arriving at any conclusion as to whether the death was caused in a manner acceptable in law or in a manner unacceptable in law but however, as the materials on record clearly indicates that the death had been caused in an army operation, although the materials available on record cannot lead to a definite conclusion as to whether the death was caused in a manner acceptable in law or unacceptable in law and for the interest of justice, we order the respondents in the Union of India through the army authorities to pay adequate compensation to the families of the five deceased persons. Without proceeding in the matter any further, we accordingly direct the respondents in the Union of India through the army authorities to pay an amount of Twenty Lakhs as compensation to the family members of each of the deceased persons namely Prabin Sonowal, Akhil Sonowal, Debajit Biswas, Pradip Dutta and Bhupen Moran.”
The court stated a reading of the contents of paragraph 2.21 of the CBI report dated 06.02.2002 makes it discernible that the CBI had arrived at its conclusion that it is dis believable that the injuries that were found on the deceased persons were caused in any encounter and accordingly, the CBI held that five army personnel namely R.K. Shivrain, Dalip Singh , Palwinder Singh, Shivender Singh, and Jagdev Singh are responsible for killing of the five persons, as they had actually opened fire on them and therefore, liable to be prosecuted under Sections 302/201 of the Indian Penal Code.
The CBI report dated 06.02.2002 also arrived at its conclusion that two other army personnel namely Col. A.K. Lal, Commanding Officer of 18th Bn., Punjab Regt. and Major Thomas Mathew of 18th Bn. Punjab Regt. Coy Commander ‘B’ Coy is liable to be prosecuted under Sections 302/201 read with Section 109 of the Indian Penal Code as because Col. A.K. Lal had planned the entire operation and Major Thomas Mathew was leading the party and had ordered the firing. In the order of the Court Martial Proceeding corresponding to File No. C/06280/EC/597(17/13)/AG/DV-2 dated 13.10.2018 the Court found that the accused Anil Kumar Lal, Thomas Mathew, RK Shivrain, Dalip Singh and Dalip Singh, Palwinder Singh, Shivender Singh, Jagdev Singh are guilty of the first charges i.e. under Section 302 of the Indian Penal Code.
As there is a requirement under the Army Act of 1950 to have the conclusion of the Court Martial to be confirmed by the competent authority, the proceedings of the Court Martial in respect of the aforesaid army personnel were placed before the competent authority. The competent authority by its order dated 05.11.2019 had sent the matter back to the Court Martial authorities for a revision of their earlier decision in terms of the provisions of Section 160 of the Army Act of 1950 and in the revision the Court Martial authorities took some further evidence and accordingly by the order dated 01.03.2020 found the army personnel to be not guilty of the charges, which again had been confirmed by the competent authority by the order dated 15.11.2020.
The court added that to understand the veracity of the allegations that the death of the five persons took place in a manner other than a manner acceptable in law, an inquiry by the CBI was held wherein there is a conclusion that the army personnel concerned are guilty of the charges and therefore, charge sheets were filed in the competent criminal court, but as the matter is covered by the Army Act of 1950, therefore, the proceedings were held in a Court Martial, where the conclusion is that the army personnel are not guilty of the charges.
In other words, the situation is that there was an enquiry and investigation, the charge sheets were submitted, the trial was held but led to a conclusion that the charges are not established. If the petitioners are still aggrieved by the conclusion of the army authorities in the Court Martial, the remedy available would be to proceed against the conclusion of the army authorities in the Court Martial proceeding that the army personnel concerned are not guilty of the charges, if permissible under the law and as per the procedure of law. But at the same time, we have also taken note that these are the writ petitions pending since the year 1994 and twenty-nine years have already passed by.Earlier Summary General court martial (SGCM) sentenced seven Indian army personnel including a Major General to life imprisonment for their involvement in a fake encounter case that had taken place in Assam in 1994.
In 1994 the manager of the tea estate was killed by Ulfa militants and army personnel from 18 Punjab Regiment of the Indian Army detained nine youths of Tinsukia districts alleging their role in the killing.
Five students’ leaders were allegedly killed by the Army in an encounter branding them as Ulfa militants while four others were released in a jungle.
The then All Assam Students’ Union Leader Jagadish Bhuyan filed a Habeas Corpus petition in the Gauhati High court seeking to know the details of these youths.
The High Court ordered the Army to produce the nine AASU leaders at the nearest police station. Later, the army produced five bodies at the Dholla Police Station.
The Summary General Court Martial on Saturday awarded life imprisonment to Major General A K Lal, Col.Thomas Mathew, Col. R S Sibiren, Capt. Dilip Singh, Capt. Jagdeo Singh, Naik Albindar Singh and Naik Shivendar Singh for the fake encounter of five youths