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Synopsis

The Gauhati High Court recently dismissed a plea pertaining to alleged fake encounter killings by police in Assam. The court said that it appeared that the petitioner rushed to the court having read some media reports on police actions leading to the death/ injury of some accused persons in police custody without properly verifying the complete facts.

The bench of Justice Suman Shyam and Justice Susmita Phukan Khaund observed that though the petitioner had referred to multiple ‘fake encounters’ carried out by the police, from material available on record it appeared that separate enquiry proceedings had been initiated in all such cases.

"Since these are individual cases of police action leading to registration of separate cases, it was incumbent upon to petitioner to point out infirmity, if any, in the inquiry conducted in any of those individual cases so as to make out a prima facie case on facts," court stated. 

Court further pointed out that there were factually incorrect averments made by the petitioners in the plea and the petitioner had not provided any documentary evidence in support of the pleadings pertaining to his credentials as well. 

"If it is true that the accused persons in police custody were illegally subjected to police actions/encounters then the matter would certainly be of grave concern for the society at large....However, the issue that would arise for consideration of this court in the present proceeding, at this stage, is as to whether, the petitioner has succeeded in furnishing the necessary foundational facts so as to justify grant of the reliefs as prayed for in the writ petition," the court noted. 

Moreover, the court held that regarding the allegations pertaining to the ‘fake encounters’ carried out by the police, the State had not denied the incidents but had taken a pleaded stand that all incidents of police encounters/ police action were being enquired into.

Therefore while stating that extra-judicial killing through ‘fake encounters’, if any, would be violative of fundamental rights of the citizens guaranteed under the Constitution, court held that unless proper foundational facts are brought to the notice of the court, a Public Interest Litigation in such a matter cannot be maintained merely on the basis of some vague and unsubstantiated assertions.

"In exercise of extra-ordinary jurisdiction under Article 226 of the Constitution, the writ court cannot embark on a fishing or roving enquiry merely based on some vague and un-substantiated assertions," Court said. 

Conclusively, taking note of the facts and circumstances of the case, the court held that the possibility of the petitioner approaching the Court merely seeking some publicity could not be entirely ruled out and accordingly, refused to entertain the plea. 

However, court ordered that the state authorities shall provide all legally permissible documents to the Writ Petitioner including copies of FIRs/Final Report in connection with all the 171 cases of Police action as mentioned by him. 

In doing so, it will be open for the concerned authorities to furnish soft copies of such FIRs/ FRs and/or other legally permissible information/documents to the petitioner, through e-mail, if so desired, court directed. 

Case Title: ARIF MD YEASIN JWADDER v. THE STATE OF ASSAM AND 4 ORS