Hemkant Thakur vs State of Chhattisgarh and Others

Prashant Kumar Mishra, J.—In the present writ petitions filed under Article 226 of the Constitution of India, the petitioners have prayed for quashing of the order (Annexure-P/1) whereby out of turn promotion granted to the petitioners u/s 56(3) of the Special Armed Force Rules, 1973 (for short ''the Rules, 1973'') on 15.9.2009 has been cancelled by the Director General of Police. Facts of the case, briefly stated, are that the said out of turn promotion was granted to the petitioners on account of extraordinary courage shown by them in combating Naxalites, who had camped at nearby forest of village Arlampalli, Kumapara at about 9 am on 17.8.2008. The petitioners were part of armed company who witnessed the Naxalites in 2 tents and thereafter in exchange of fire, 2 female Naxalites and 1 male Naxalite were killed and huge cache of arms, ammunition and Naxal literature were recovered from the spot.

Soon after the incident, there were reports that innocent villagers have been killed by the police, therefore, magisterial enquiry was ordered. In the order granting out of turn promotion to the petitioners, it is mentioned that because of delay in obtaining report of the magisterial enquiry, out of turn promotion is ordered, however, any adverse remark/fact if found against them in the magisterial enquiry report, out of turn promotion can be cancelled.

The Sub Divisional Magistrate, Konta, District Sukma, who conducted enquiry, submitted his report dated 21.10.2009 (Annexure-P/2) wherein he has observed that the persons killed in the encounter could have been caught alive and even if firing was required, the police personnel engaged in the encounter should have fired on them below their waist and not on the upper portion of the body.

On reading of the entire report, it would appear that when the concerned Magistrate issued proclamation inviting objections and evidence from all concerned, no-one came forward to submit any evidence and in the said circumstance, the Magistrate proceeded to enquire the matter on the basis of records with regard to the incident available at Police Station Dornapal. The report also says that the Magistrate has also considered oral information received by him from other sources. However, the other sources have not been disclosed in the enquiry report. It nowhere appears from the contents of the report that the petitioners were ever summoned for filing any reply or for ascertaining the fact which led to encounter with the Naxalites.

Learned State counsel would draw attention of the Court to para-5 of the report wherein it has been observed by the Magistrate that the police personnel engaged in the encounter should have acted sensibly so as to infuse confidence in the police by the local villagers and in that context, it is said that by firing below the waist, the deceased persons could have been caught alive.

Having heard learned counsel for the parties and considering the contents of the report, it would clearly emerge that the Magistrate was not possessed with any other record except the record of the incident available with the concerned police station pertaining to Crime No. 9/2008. There is no finding in the report that the persons killed in the encounter were innocent villagers and in fact, no such finding could have been recorded also in the absence of any villager having come forward to claim that the deceased persons were residents of the same village or nearby villages. In the absence of such evidence available with the Magistrate, it is more probable that the deceased persons were Naxalites. The Magistrate has also not mentioned any such situation which would compel this Court to conclude that the police personnel used more force than what was required to contain the Naxalites. The fact that an offence u/s 307 IPC has also been registered against the persons who had engaged the police personnel in an encounter would mean that the bullets were also fired on the police personnel and in retaliation, the police team opened fire in which 3 Naxalites were killed, the abstract observation that the police personnel should be more careful and sensible cannot be taken as adverse comment against the petitioners.

In view of the above, this Court is of the considered opinion that in the magisterial report, no such adverse comment is recorded against the petitioners requiring withdrawal/cancellation of out of turn promotion granted to them on 15.9.2009. Moreover, the petitioners have not been granted any opportunity of hearing either in the course of enquiry conducted by the SDM nor before passing the impugned order cancelling their out of turn promotion. Thus, viewed from any angle, the impugned orders cannot be sustained in law. For the foregoing discussion, the writ petitions are allowed and the impugned orders deserve to be and are hereby set aside.