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PETITIONER: SMT. POSTASANGBOM NINGOL THOKCHOM & ANR.

       Vs.

RESPONDENT: GENERAL OFFICER COMMANDING & ORS.

DATE OF JUDGMENT:       16/09/1997

BENCH: CJI, S.P. BHARUCHA

ACT:

HEADNOTE:

JUDGMENT:               THE 16TH DAY OF SEPTEMBER, 1997 Present:                  Hon’ble the Chief Justice                  Hon’ble mr. justice S.P. Bharucha Sunil Jain and Vijay Hansaria, Adv. for the appellants. Ashok Srivastava, Adv. for the Respondents                       J U D G M E N T      The following Judgement of the Court was delivered:                       J U D G M E N T S.P. BHARUCHA, J.      The appellants  are the  mothers of  Thokchom  Lokendra Singh and kangujam Loken Singh respectively.  The said boys, each about  20 years  old,  along  with  a  third,  kangujam Iboyaima Singh was released, but the said boys were not.  On April  9,1981,  the  appellants  filed  habeas  corpus  writ petitions before the Ghuhati High Court.  The writ petitions were dismissed  by a learned Single Judge on the strength of the avernment  of the respondent that the said boys had left their custody.   Appeals  were filed before a Division Bench of the  High Court,  which  also,  ultimately,  came  to  be dismissed in view of the respondent’s statement.      Special leave  to appeal  against  the  orders  of  the Division Bench  was granted.   The respondents reiterated in this Court  the stand  that the  said boys had been released after interrogation,  but without  having been  first handed over to  the police.  On April 24, 1990, this Court directed the District  Judge, Imphal  (West), to  conduct an  inquiry into the  circumstances relating to the disappearance of the said boys.   The  District Judge  was directed to permit the concerned parties  to adduce evidence, documentary and oral, and to  cross-examine the witness of the other side.  He was also directed  to record  the statement  of the  third  boy. Kangujam Iboyaima Singh, who had been released.      The District  Judge  submitted  a  detailed  report  on October 6,1990.  His conclusion was that there was no cogent evidence to  show that the said boys had been released.  He, therefore, found  that they  had not  yet been released from the custody of the first and second respondent.      The case  before us is squarely covered by the decision of this Court in Nilabati Behera V. State of Orissa (1993) 2

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SCC 746,  the facts  whereof were similar to those us.  This Court Held  that there  was an obligation upon it, conferred by Article  32 of  the constitution,  to forge the new tools necessary for  doing  complete  justice  and  enforcing  the fundamental rights  guaranteed by  the Constitution.    This enabled it  to award  monetary compensation  in  appropriate cases where  that was  the only  mode of  readers available. The remedy  in public  law was  more readily  available when invoked by  the have-nots,  who where  not possessed  of the wherewithal for  enforcement of their rights in private law, but the exercise was to be tempered by judicial restraint to avoid circumvention  of private  law  remedies,  where  more appropriate.   The Court  awarded compensation in the amount of  Rs.1,50,000/-  to  the  petitioner  in  that  case,  and clarified the award thus:      "25.   We clarify that the award of      this compensation,  apart from  the      direction  for  adjustment  of  the      amount  as   indicated,  will   not      effect any  other liability  of the      respondent  or   any  other  person      following from  the custodial death      of petitioner’s  son Suman  Behera.      We also  expect that  the State  of      Orissa  would  take  the  necessary      further action  in this  behalf, to      ascertain     and      fix      the      responsibility  of  the  individual      responsibility of  the  individuals      responsible for the custodial death      of Suman  Behera, and also take all      available    appropriate    actions      against  each  of  item,  including      their prosecution  for the  offence      committed thereby."      After  the  receipt  of  the  District  Judge’s  report mentioned  hereinabove,   this  Court,   on  August  2,1991, directed the  Union of India to deposit in the names of each of the  two appellants  in the  State Bank of India, Imphal, the amount  of Rs.1,25,000/-  the interest whereon was to be paid periodically to them.  This has been done.      Having  regard   to  the   District   Judge’s   finding aforestated, learned  counsel for  the respondents  does not now contend  that the  said  boys  has  been  released  from custody.   All that  remains to  be done,  therefore, is  to determine, in  terms  of  the  law  laid  down  in  Nilabati Behera’s case, the quantum of compensation to be paid to the two appellants.   In  our view,  each of  the two appellants should be  compensated in the sum of rs.1,25,000/-.  The two amounts of  Rs.1,25,000/- already  deposited with  the State Bank of India, Imphal, by the Union of India pursuant to the interim order  of this  Court dated  August 2,  1991, shall, accordingly, be  paid over  by the  said  Bank  to  the  two appellants after they have given to its manager satisfactory proof of their identify.      The clarification  quoted above  in paragraph 25 of the nilabati Behera’s  case shall  be applicable to this case as if specifically set out herein. The appeals are followed accordingly. The respondents  shall pay  to each  of the  appellants  the costs of her appeal, quantified in the sum of Rs.7,500/-.