Uttarakhand Sangharsh Samiti vs State of U.P. and Others

Ravi S. Dhavan, J.—Having had the advantage of going through the opinion prepared by my esteemed brother, Hon''ble Ravi Section Dhavan, J., at various stages of preparation whereof, there had been exchange of views between us, and with which opinion I am in full agreement in the nature of the cause herein, and considering the far reaching implications of the questions relating to human rights and its alleged violation at the hands of State agency, arising in these public Interest petitions, it would be in the fitness of things to express briefly on certain aspects of the matter.

These petitions which complain of a series of horrendous Incidents of human rights violation in the hill regions of Uttar Pradesh and its periphery, in the months of September-October, 1994 seek amongst others the following reliefs:

(a) a writ of mandamus commanding the State of Uttar Pradesh to appoint a Commission of a Sitting Judge of Allahabad High Court or appoint an independent agency like Central Bureau of Investigation, to enquire into the incidents of Dehradun, Mussoorie, Khatima and Muzaffarnagar etc.;

(b) a writ of certiorari quashing the appointment of Shri Justice Rejeshwar Singh (Retired) as Commissioner for enquiry;

(c) a writ directing the Respondents to trace and restore the missing people;

(d) award compensation to the affected people for Injuries, deaths, Illegal detentions, harassment, rape and molestation of women, and violation of their human rights by public authorities;

(e) a writ directing the concerned authorltes to register cases of rioting, dacoity, killing, rape and molestation of women and Illegal detentions of Innocent people against erring officials and punish and suspend those responsible for mass killings, rape etc.;

(f) a writ directing the State of U.P. to re-consider the reservation policy in the light of judgment of the Supreme Court in State of U.P. v. Pradeep Tandon;

(g) a writ of habeas corpus against the State Respondents calling them to produce the persons, named Dharamanand Bhatt. Gopi Chand, Paramjit and Ram Pal missing and those illegally detained since the incident at Khatima or to furnish their where abouts;

(h) a writ of mandamus commanding the State of U.P. to constitute a State Human Rights Commission under the Protection of Human Rights Act.

Of these, the aspect relating to reservation in educational institutions in Kumaun and Garhwal, was subject-matter also of a separate Writ Petition No. 29843 of 1994: Manvendra Sah v. State of Uttar Pradesh before this Court. The same was decided on 31st May, 1995, quashing the notifications in this regard.

2A. The genesis of this entire episode is traceable to the demand of the people of Kumaun and Garhwal for a separate State, as contemplated in Article 3 of the Constitution of India, which runs as follows:

Formation of new States and alteration of areas, boundaries or names of existing States.--Parliament may by law--

(a) form a new State by separation of territory from any State of by uniting two or more States or parts of States or by uniting any territory to a part of any State;

(b) increase the area of any State;

(c) diminish the area of any State;

{d) alter the boundaries of any State;

(e) alter the name of any State:

Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States...the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired.

In the instant case although the steps, and the procedure, required under the proviso to Article 3 aforesaid, were not adhered to, yet at the behest of the two successive Governments, both the Houses of the State Legislature unanimously passed resolutions recommending to the Central Government the creation of a State known as Uttaranchal. This exercise was preceded by an examination of the claim of Statehood, by a committee known as Kaushik Committee, headed by a Cabinet Minister in Government of Uttar Pradesh. No follow up action, however, appears to have been initiated by the President or the Central Government in accordance with the procedure prescribed under Part I of the Constitution.

In the above situation, what added fuel to the fire, and provided an immediate cause for the mass movement in the regions aforesaid, was the announcement of 27% reservation of seats in all educational institutions in the said area, as In the plains, despite the required facts and criteria being nonexistent. That it was so done without any survey, and in teeth of the categorical observations in State of Uttar Pradesh and Others Vs. Pradip Tandon and Others, , for a non-existent class of people, led to an apprehension in the minds of the people there, that it will lead to a shift of population from the plains to the hills. And when the people of the area protested, it resulted into a series of violent incidents, including firing by the police and para-military forces, on the crowds of agitationists, as well as others at various places, resulting into loss of as many as twenty-four lives, including a young Deputy Superintendent of Police and a Fire Brigade driver, injuries to many, and detention and Incarceration of a large number of persons, as well as mass scale molestation, and rape of women, and deprivation of valuables and personal effects, at the hands of the members of these forces. One such person is stated to be still unaccounted for.

While incidents of major dimensions were stated to have occurred at Khatima in district Nainital on 1.9.1994, Mussoorie in district Dehradun on 2.9.1994, Narsen in District Haridwar, and Rampur-Tiraha in the district of Muzaffarnagar, on 1 and 2.10.1994, incidents involving deaths, injuries and loss of property were also alleged to have occurred in Dalanwala and Doiwala in the district of Dehradun, Tallital in district Nainital, Gauchar in district Chamoli, at Pauri and Kotdwar. The various petitions gave graphic details of the Petitioners� version regarding these incidents. The media also flashed its own reports nationwide but in the absence of any prompt response from the State authorities, and the accusation being against the State machinery itself, in order to have an objective assessment of what may have happened, this Court by its order dated 7.10.1994 called upon the Central Bureau of Investigation, by a writ of mandamus to investigate on the incidents which may have happened in the regions of Garhwal and Kumaun between 17 June, 1994 and until the investigation is determined, and report its findings to the High Court, besides submitting on conclusion of the investigative, the statutory reports under the Code of Criminal Procedure to the Courts competent to take cognizance u/s 190 of the Code of Criminal Procedure. The status so conferred upon the C.B.I. thus, besides the only investigative agency, was also of a Commissioner of the Court, for the purposes of determining the truth, or otherwise, of the allegations of gross violation of human rights and indiscriminate use of strong arm methods against the participants in the civil rights movement as well as others.

The C.B.I. which took up the task rather reluctantly, on getting to the Job gave its first three reports, mostly about the aspects of the incident at Rampur-Tiraha and its periphery, with some details, but subsequently the pace of enquiry considerably slowed down and the reports submitted became sketchier, till the Court reminded it of the necessity of the reports being communicative, to enable the Court, and for that matter the parties, to get apprised of its prima facie findings about the incidents in its various aspects.

What emerges prima facie established, on a consideration of the pleadings exchanged between the parties, the reports 20 in number of the C.B.I., copies of which were duly supplied to the learned Counsel for the Petitioners, State of U.P. and the Respondent officials, copy of the report dated 16.11.1994 of the National Commission for women, submitted to the Government of India, and upon hearing at length learned Counsel for both the sides, is to the following effect:

Re : Khatima

Felt aggrieved by reservation of 27% seats in the educational institutions for the O.B.Cs., which population in the hill region does not exceed two to three per cent, the people, particularly the students, of the area started protesting for withdrawal of the same. In the week immediately preceding 1 September, 1994, the police made house to house search, picked up and detained 95 students within Khatima Tehsil and sent them to far flung jails. When the local newspapers published the photographs of these students alleging police brutality, the people of Khatima and nearby places, decided to demonstrate and to submit a memorandum to the authorities in this regard.

On 1.9.1994 in the presence of district authorities, between 10.11 a.m. when the peaceful procession comprising of about ten to fifteen thousand persons passed from in front of Police Station Khatima, shouting anti-police and anti-Government slogans, the police without any provocation, taking orders of Sub-Divisional Magistrate, resorted to indiscriminate firing in and around the police station, as also the Tehsil campus, leaving several dead and injured, it being a pension day, many of them retired army personnel, S.L.R., Stengun and other sophisticated weapons are also alleged to have been used in the firing. While the police recorded and acknowledged only three persons Bhagwan Singh Sirola, Pratap Singh and Salim as having been killed in the police firing. It was contended by the Petitioners that four more persons, viz., Dharmanand Bhatt, Gopi Chand, Paramjit Singh and Ram Pal, who were also seriously injured in police firing, were bodily lifted away by the police led by the Station House Officer of Police Station Khatima, and have not been traced dead or alive since then. Although the police and State Respondents initially denied the allegations of these persons having been taken away dead or injured, and went on to suggest that some of them might have been eaten away by wild animals, subsequently as a result of a C.I.D. enquiry conducted at the behest of then Advocate General, Shri S.P. Gupta, it was admitted that these persons are no longer alive and in all probability died as a result of police firing.

The C.B.I. has also reported that investigation has revealed material to suggest prima facie that Shri Dharamanand Bhatt, Gopi Chand, Paramjit Singh and Ram Pal were also killed in the police firing outside the premises of P.S. Kotwali Khatima, whereas S.D.M. had ordered firing in the premises of P.S. Kotwali Khatima only, and their bodies were disposed of by the authorities surreptitiously at the behest of some police officers and others, without intimation to their families or recording the same in the police records. Further the dead bodies of three persons Bhagwan Singh Sirola, Pratap Singh and Salim admitted by the State Respondents to be killed in the police firing, whose autopsy was conducted at Pilibhit, were not handed over to their kith and kin, rather were disposed of at a place called Majhola, between Pilibhit and Khatima.

According to the C.B.I., twenty eight persons as mentioned at page 6 of its VII Status Report received injuries at the hands of the police, six of them by fire-arms and the rest by blunt objects. Forty-five persons were arrested by the police on 1.9.1994 and instead of being lodged in the Haldwani district Jail in the district of Nainital, were sent to District Jail, Varanasi, from where twenty-thret of them were released on bail on 23.9.1994.

The C.B.I. has sought assistance of the C.F.S.L., New Delhi who have taken samples of bullet pieces, blood stains and firing marks on the walls. A breakthrough is imminent and the Investigaing Officer, according to the C.B.I., will file his report u/s 173, Code of Criminal Procedure regarding Khatima incidents, at the earliest, on prima facie case being made out against concerned public servants.

Re : Mussoorie

According to the Petitioner''s version, under the auspice of the Uttarakhand Sangharsh Samiti, the local people of Mussoorie, like the people of other segments of the hill regions of the State, were agitating in support of movement for Uttarakhand and against the policy of reservations in the educational institutions in the hills. They had their improvised office at the Jhoolaghar which is called Ropeway restaurant from where their activities were co-ordinated.

On 31 August, 1994, the meeting of sub-committee of the Samiti consisting of some leading citizens of the town was called at Jhoolaghar to consider the steps to support ''band'' call given at Pauri in support of their demands. On enquiry by the District Magistrate, Dehradun, a Joint report was submitted by the A.D.M. (F), S.D.M. and then S.H.O., Mussoories, that there was no need for extra police force in view of the peaceful nature of the people of Mussoorie. The administration which, however, was vindictive, on 1.9.1994 replaced the Station House Officer and heavy deployment of P.A.C. and police was made at Mussoorie.

The arrest and removal of five activists In the morning of 2.9.1994 from the local Samiti office by the newly posted S.O., Mussoorie, seizure of leaflets, other articles and donation box, and forcible eviction from the office led to further demonstration, and arrest of forty-three persons. As a measure of protest two processions consisting of women, children and persons of all ages, one from Landhour and other from the Library point, led by some respectable ladies and others, started at 9 a.m. and reached Jhoolaghar. While they were protesting against forcible eviction from the building and tried to pay homage to the martyrs at Khatima, stones were pelted from a hillock by P.A.C. people in civilian dress. In order to seek protection some of the ladies and children went inside the Samtiti Office which was formerly a restaurant. At Jhoolaghar were present Circle Officer Umakant Tripathi with some P.A.C. and police Constables. While the Circle Officer told that he had no objection to hand over the possession of the rooms to Samiti, the Station Officer was adamant to crush the movement. Suddenly the P.A.C. and the Police Constables who had formed a chain outside the building, turned around and started shooting without any orders from S.D.M. or any provocation from agitationists.

From a distance of about 5 ft. they sprayed bullets on two ladies Hansa Devi and Balmati Chauhan, who died instantaneously, their heads shattered. The bullets also hit Raj Singh Bangari, Dhanpat and Madan Mohan Mumgain who also died. A Constable named Jagmohan Singh Rawat killed one Balbir by piercing a bayonet. Rajendra Singh, an Advocate, was shot in the chest and critically injured. Lathi charge was also made. When Circle Officer Umakant Tripathi shouted at his men not to shoot, they shot at him by their 303 rifle and he was injured. Before dying the young Circle Officer stated before some persons present there, that his own men have killed him. As many as 47 persons including the ex-Chairman of City Board and ex-D.I.G. were arrested without any warrant or authority of law, they were not produced before any Magistrate and were not given food or water and were made to stand all along. At 3 a.m. in the morning they were taken to Bareilly in a bus and were beaten and let off at 5 p.m. on 2.9.1994 without any food or water.

The counter-version in the F.I.R. under Sections 147, 148, 149, 353, 332, 339, 436, 307, 395, 504, I.P.C.. 3/4 P.P.D. Act and 7 of Criminal Law Amendment Act lodged by the S.O., P.S. Mussoorie and adopted in the charge-sheet submitted against fourteen persons from amongst agitationists by the local police, it was alleged that the agitationists had occupied the hall of the municipality and locked the office of S.D.M. On 30.8.1994, the administration made an attempt to unlock the said office. Meanwhile there reached the news of police firing and deaths in Khatima on 1.9.1994. The crowd of the agitationists which assembled at Jhoolaghar on 2.9.1994 protesting against arrest of some of the agitationists earlier and the incident of Khatima, indulged in stone throwing, causing injuries to a number of people including police officials and did not disperse despite the assembly being declared unlawful, use of tear gas and lathi charge, and looted arms and ammunitions which led to police firing on the orders of S.D.M. resulting into death of aforesaid six persons and injuries to a number of other persons named by Petitioners. The Circle Officer Umakant Tripathi who was also injured in the incident went with other injured persons to St. Mary''s Hospital in the same ambulance for treatment. There some persons from the crowd including nine of the named accused persons dragged him from the hospital and assaulted by kicks, lathis, stones, brickbats, khukari and fire arms, resulting into his death on the road outside the hospital. Forty-eight public men and twenty-three police persons received blunt object injuries, thirty-one public men received firearm injuries in this incident.

After cognizance on the charge-sheet was taken by the Magistrate; in pursuance of the order dated 12.1.1995 of this Court, the C.B.I. claims to have reinvestigated the matter and in its typical sketchy style has reported that, reiterating the facts in the police report in its totality it has submitted its own charge-sheet against the same fourteen public men before the Magistrate. The C.B.I. does not appear to have registered any cross-case In respect of the specific allegations of the Petitioners against the local and the district level officials nor has submitted any consequential final report for consideration for acceptance, of the competent court.

Re : Haridwar and Muzaffarnagar

As a culminating point of their civil disobedience movement, the people from Kumaun and Garhwal, decided to proceed to New Delhi to hold a demonstration before the central authority in support of their demand, on 2nd October, 1994. For this purpose, they had sought and were granted permission by the Commissioner of Police, Delhi. The buses from Kumaun region which took route via Rampur, Moradabad Ghaziabad reached New Delhi without any hindrance. Those coming from the districts in Garhwal region took the route via Mohund in Saharanpur, Gurukul Narsen in Haridwar, Chhapar and Rampur Tiraha in district Muzaffarnagar. The rallyists from this region were proceeding in approximately 300 buses and included besides men also children, girls and women. Two of the buses were occupied exclusively by women.

Earlier on 30.9.1994, a meeting of all the District Magistrates and Superintendents of Police of the Meerut Division, was called by Commissioner. Meenit Division, which was also attended by Zonal I.G., Mr. S.M. Naseem and the Range D.I.G., Mr. Buwa Singh. In response to the wireless message received from the Commissioner of Police, Delhi, to ensure that the rallyists entering Delhi were not armed, it was decided to set up check posts at various places in Haridwar, Roorkie, Saharanpur and Muzaffarnagar districts.

According to the joint report of the D.M. and S.P., Saharanpur, as per instructions they on 1.10.1994 tried to pursuade the rallyists not to proceed further towards Delhi. Two of the buses returned after being so advised. Rest 53 buses containing about 3000 rallyists were stopped and checked at about midnight, but nothing incriminating was found.

The rallyist and the buses were also checked at Gurukul Narsen in the night of 1/2.10.1994 and nothing incriminating were found. The rallyists who had got restive, proceeded further by removing barricades at Gurukul Narsen; one of the ladies was relieved by police of her gold chain there. Tear-gassing and lathi-charge was also resorted to. One person is also stated to have received fire-arm injury. Finally, the same carvan of buses was again stopped at the check point near Rampur Tiraha at Haridwar-Muzaffamagar-Delhi road the same night, by blocking the entire width of the road by placing trucks with the purpose of obstructing flow of traffic, in a totally dark area. At first instance, 345 rallyists Including 286 male and 47 females were arrested at about 11.30 p.m. and were taken to the Police lines where they were released unconditionally under orders of the S.D.M. at about 5 p.m. on 2.10.1994. According to the authorities, the rallyists indulged in stone-throwing as a result of which they resorted to lathi charge. Extensive damage was, however, caused to the buses of the rallyists and their headlights, with obvious intention to prevent their movement towards Delhi.

Under the pretext of making search for firearms, etc. and taking advantage of the melee caused by lathi charge, 17 women rallyists travelling In the buses were physically molested, three others were raped inside the buses, and four were dragged to the nearby fields and raped, all by the police and P.A.C. men. The policemen also snatched and tore the clothes of these women. They also forcibly snatched watches, chains and cash. All this happened between midnight and 3 a.m. in the night of 1.2.10.1994. Some lady rellayists also complained about abusive and derogatoiy language used by the A.D.M. (Executive), Muzaffarnagar and D.I.G., Meerut Range.

In the early hours of 2.10.1994, a carvan of 53 more buses carrying rellyists from Dehradun reached Rampur Tiraha and Joined about 2000 persons already held up there from the preceding night. This group refused to be and brickbatted on the policemen, when warning became ineffective, lathi charge, tear-gassing and firing with rubber bullets were resorted. Forty-five policemen received injuries in this incident. The District Magistrate, Muzaffarnagar ordered firing. Twenty-four rounds were fired from 303 rifles and ten rounds by stenguns resulting into death of five persons Ravindra Rawat, Girish Bhadri, Rajesh Lakhera, Satendra Chauhan and Surya Prakash Sharma and injuries to 35 others. One person Rajesh Negi is still missing. Shots by automatic weapons resulting into deaths were fired by Deputy S.P. Jagdish Singh and Superintendent of Police R.P. Singh by taking these weapons from Constable Subhash Chandra and another Constable, and a false F.I.R. of firing in self-defence was got lodged. Another Dy. S.P. Mr. Nainwal and gunners of the Additional S.P. also fired with automatic weapons.

Pages and entries in the police General Diaries and Log Books of relevant dates were found to have been changed, tampered and interpolated with connivance of higher officials.

A four-member team of National Commission for Women which visited and met the affected people at their places in Gopeshwar, Srinagar, Tehri and Dehradun, also affirmed the incidents of rape, molestation, depriving of personal effects at Gurukul and mostly at Rampur Tiraha and saw marks of injuries by lathi, danda on the legs and thigh of some of the women victims and abnormally blue and swollen breasts of another victim as a result of molestation and assault on private parts.

The C.B.I.s on investigation also found 11 cases registered at P.S. Chhapar, district Muzaffarnagar, about alleged recovery of country-made pistols and used cartridges, from the buses and the nearby areas to be fake and the weapons planted by the police, and has launched prosecution against concerned officials.

C.B.I. in this regard has, besides investigating the 45 F.I.Rs. registered against the rallyists and others by the State police, also registered 24 F.I.Rs. in the matter of alleged rape and molestation, three F.I.Rs. in the matter of conspiracy, wrongful restraint, wrongful detention and tampering records, against the police and other officials, though formally none regarding the act of deliberate shooting, and use of excessive force by the concerned officials and abettors.

Re : Arrests and Detentions

Of those arrested between August and December, 1994, in all 1379 persons were remanded to custody. 398 out of them, some of them minor, were lodged in jails far away from the hills. These detentions of undertrials in far flung jails are sought to be Justified on the ground firstly, of the administration being possessed of power to do so, and secondly on a faint plea of the necessity to segregate them from the inmates of the jails in the hill areas.

Irrespective of the merits or otherwise of the grounds of arrest, there can be no two opinions that the detention at far away Jails, at a distance of about 300 to 800 Kilometers from the place of arrest, away from the jurisdiction of Magistrate/courts competent to grant remand or bail, and try the alleged offences, denying the fundamental right to consult and be defended by a lawyer of their choice, and be kept within the proximity of such Magistrate/court, enshrined in Articles 21 and 22 of the Constitution, read with Sections 50, 56, 57, 122(1), 167 and 303 of the Code of Criminal Procedure, were obnoxious enough to constitute violation of the detenu''s human rights.

The detenus not being convicts but undertrials, the prison or the district authorities or, for that matter, the Magistrate sanctioning the initial remand, did not have jurisdiction to place, or transfer, them for detention to Jails outside and far away from the Jurisdiction of competent courts.

Also there is no material worth the name to indicate that the detenus were a security hazard or there was not available space at the relevant time in the concerned or nearby jails, to lodge them. The documents placed on record on the other hand indicate that much before effecting arrests, the decision to send them to far flung jails in the eastern and southern parts of the State, was administratively taken.

Such as above being the state of affairs, there can be no escape from the conclusion that the State and its officials, at most of these places, grossly over-reacted to the situation arising out of civil movements of the people of Kurnaun and Garhwal. Their acts of commission and omission, particularly at Khatima, Mussoorie, Gurukul-Narsen and Muzaffarnagar, were nothing short of State terrorism, which unfortunately is of late on increase, given the unbriddled muscle power enjoyed by the bureaucracy at places.

Even if at some point, during the course of a civil movement, some provocation may have come from agitationtsts at some of the places, given the inherent limitations on the extent of powers under Chapter IV (particularly Sections 96 to 106) of the I.P.C. and Chapter X (particularly Section 129) of the Code of Criminal Procedure, the same could not give the State or its officials, a licence for indiscriminate killing, or keeping the detenus without food and water and detaining many of them in far flung Jails, literally denying them any effective legal assistance and opportunity to approach the Magistrate/court having jurisdiction, to seek liberty or at least a fair deal.

As the facts emerging prima facie from the enquiry conducted by the C.B.I., and other material on record indicate, people were shot at Khatima in cold blood. Bodies of four of those killed in Khatima were surreptitiously removed even while they were breathing their last, and were disposed with a view to minimise number of deaths, and of the three deaths which were acknowledged, the bodies of those dead were not handed over to their family members despite their persistent entreaties, rather were disposed of mid-way between Pilibhit and Khatima. All these besides constituting a brazen violation of human rights, also amount to causing disappearance of evidence to screen, whosoever be the perpetrators of these henious crimes, from justice.

At Rampur-Tiraha and Gurukul-Narsen, apart from wrongfully restraining and detaining, those going to Delhi on a valid permit, killing and causing injuries; the incidents of rape and molestation and heaping other indignities on girls and ladies, looting their ornaments and other belongings are an example of savagery, unknown even to the primitive men, and has come to stay as a permanent scar on the face of the nation.

In the matter of Mussoorie, the killing at the hands of the agitators or their sympathisers, of young injured Dy. S.P. seeking succour at the hospital, who probably was also not a part to the alleged fatal assaults, is a serious stigma on the claim of wholly peaceful agitation there, and the individual perpetrators of the said crime deserve to be condemned and tried; but there also the killing of seven persons including two ladies who had their heads shattered by close range firing, is prima facie indicative of an over-reaction and mishandling of the situation by the authorities, before, during and immediately after, the incident, resulting into violation of human rights of the people on both sides. One such example of mishandling, to quote, is leaving the injured Dy. S.P. uncared to the extent that he had to go to seek medical attention to save his life, unprotected, in the same ambulance with the injured agitationists.

The contention in these petitions advanced on behalf of some of the Respondent officials by their learned Counsel that no conclusions could fairly and legally be drawn by the Court, in these proceedings with regard to these incidents, and the persons and agencies responsible for the same, because no cross-examination of the witnesses has been permitted, and it may amount to pre-Judging the guilt of those who may be prosecuted, is also devoid of merit. The intent and purpose of enquiry in a petition complaining of violation of basic human rights being to repair the damage done to an individual, class or a region, to the extent possible, and take remedial measures to prevent recurrence, than to punish individual perpetrators of what may be an offence under the penal laws, the principle of strict proof liability is not attracted, and it is permissible to draw the conclusions based on prima facie material including affidavits, enquiry reports of independent agencies, and the attending circumstances. [See Delhi Judicial Service Association, Tis Hazari Court, Delhi Vs. State of Gujarat and others, ; Smt. Nilabati Behera alieas Lalita Behera Vs. State of Orissa and others, and Avinder Singh Bagga v. State of U.P. AIR 1995 SCI 171.

Such materials abound on record of these petitions to enable coming to a conclusion as arrived at above. For establishing guilt beyond reasonable doubts, or otherwise, of any individual, be it an official or other person, however, resort will still have to be had to a trial in accordance with the provisions of the Code of Criminal Procedure. And such trial in a given case may even fail on individual merit, irrespective of the conclusions herein.

In proceedings under the Code while the prosecutor may press for a charge u/s 240 or Section 228, as the case may be, it will still be open to those indicted by means of a charge-sheet by the investigating agency, to seek discharge u/s 239 or 227 on the plea of there being no sufficient ground for proceeding. On final or closure report, being submitted by the investigating agency in any matter, or omitting to enquire, the person affected or aggrieved, including the Petitioner, shall have a right to be heard before such report is accepted, and to move a protest application or a complaint before the Magistrate empowered to take cognizance, besides recourse to Section 319 of the Code of Criminal Procedure.

Yet another question debated as to whether any sanction of the State Government as referred in Section 197 of the Code of Criminal Procedure will be required for initiating prosecution of such of the public servants as may be found prima facie liable to be prosecuted for the crimes committed, directly or vicariously, also needs consideration at this stage. What Section 197 contemplates is the prosecution of a Judge or Magistrate or a public servant not removable from his post, save by or with the sanction of the government, accused of any offence alleged to have been committed by him while acting or purporting to act Li discharge of his official duty; and lays down that no Court shall take cognizance of such offence except with the previous sanction of the employer Government. Thus it is not every act done or omitted by a public servant while on duty, which comes within the mischief of this provision. The act complained of must have a direct nexus to the discharge of official duty. The law in this regard has vividly and categorically been laid down by the Privy Council as well as the Apex Court in AIR 1948 128 (Privy Council); Amrik Singh Vs. The State of Pepsu, ; Matajog Dobey Vs. H.C. Bhari, ; AIR 1986 345 (SC) .

The acts of wrongful restraint and detention, planting weapons to show fake recoveries, deliberate shooting of unarmed agitators, hounding and herding women rallyists in the darkness of night, and thus facilitating situations knowing it to be likely that their modesty may be outraged and they may be victim of other sexual offences ; actual commission of rape and molestation, tampering with and framing incorrect records, dishonouring the dead and disposing of bodies of those dead in a clandestine manner, screening offenders from law, and depriving people of their ornaments and other belongings, even if done during the performance of a law and order duty, are neither acts done nor purported to be done in the discharge of official duties. No sanction of the Government thus is required in ordering prosecution of such public officials.

In case like the present one, where on conducting investigation under orders of the High Court sufficient material has come to light, establishing gross violation of human rights, and prima facie commission of offences of the nature of wrongful restraint and detention, in furtherance of criminal conspiracy, tampering of public records, deliberate killings, looting valuables, and rape and molestation of women, there is a statutory obligation on the investigating agency to submit charge-sheet, otherwise a report u/s 173, Code of Criminal Procedure in the competent court. The question of absence, or otherwise, of a sanction in such cases cannot be raised, nor the jurisdiction of the Magistrate to take cognizance challenged at the threshhold; though it may be open to the accused to place material during course of trial for showing that the impugned acts were interrelated with his official duty, so as to attract the protection afforded by Section 197, Code of Criminal Procedure This view is fortified by the law laid down by the Supreme Court in Bhagwan Prasad Srivastava Vs. N.P. Mishra, .

As far as the aspect of much awaited trials for rape and molestation is concerned, based on my experience of four decades; as a lawyer, a public prosecutor and a trial Judge, I would venture to say that the entire process of a trial, for offences involving inroads on privacy and modesty of women, including acts of rape and molestation, is for the victim the most harrowing experience in life. The mental agony and the social stigma faced by a victim of such bestiality is further compounded by the gruelling attempts by a cross-examiner on behalf of the accused to attack her chastity or derive what may be a sadistic satisfaction, by making her to describe for the gallery, how sarees and blouses were torn, breasts padded or sexual assaults made. The law in this regard, to say the least, is still at a primitive stage, unable to protect the honour and dignity of women and to bring the monsters committing such ugly crime to book. A victim of rape, in such a situation, has virtually to die twice, in her life time; once when as a hapless person she becomes target of someone''s lust, and again when she has to verbally reconstruct her night-marish experience in a court of law. There, thus, should be no hesitation in treating victims of rape and molestation, in the same category as those killed, in the matter of providing reliefs whatever and wherever possible.

To sum up, therefore, in the nature of facts established in the cause before this Court, there being no escape from the conclusion that there has been a gross violation of human rights of the victims of violence, looting, sexual assaults and the like, belonging to the hills of the State in particular, and betrayal of the confidence of the people of those regions in general, at the hands of the officials, named or otherwise; the said officials as well as the State Administration of Uttar Pradesh, are liable for the constitutional torts.

As to the powers of the Court to award in a writ jurisdiction, appropriate reliefs including direction for prosecution of the offenders, and compensation to victims by way of damages for violation of human rights, there can be no two opinions that, the courts in India, or for that matter in any civilized society, wedded to the rule of law, do possess such powers and jurisdiction. The Supreme Court in a catena of decisions, vividly referred to in the opinion rendered by brother Ravi S. Dhavan, J., has exhaustively and categorically laid down the principles in this regard and it does not appear necessary or expedient to repeat the same herein. The defence of exercise of sovereign power or immunity of the State in regard to liability for tort, is too outdated a theory to be accepted. [See The State of Rajasthan Vs. Mst. Vidhyawati and Another, ; Saheli, A Women''s Resources center, Through Ms Nalini Bhanot and Others Vs. Commissioner of Police Delhi Police Headquarters and Others, .

The quantum of compensation awardable to the victims herein, of course, will have to be determined in the perspective of the entire gamut of the incidents, where these unsuspecting citizens of the hill areas were subjected to brutalities almost unparalleled in the annals of modern India, at the hands of those whose responsibility it was to protect, rather than to kill or mutilate; to honour the dignity of womenhood, than to defile it. The compensation to the individuals thus has to be exemplary, besides repairing the damage to the self-respect and spirit of the people of a whole area on the principle of reparation.

By the Court

This Court, accordingly, is of the opinion that the reliefs and directions as have been enumerated hereinafter would be Just, equitable and expedient. The reliefs are:

Of those were killed in the agitations, the C.B.I. reports their numbers as 24, the compensation to the dependents of each of the deceased shall stand at Rs. 10,00,000.00. This will include the Deputy Superintendent of Police, Uma Kant Tripathi, who died during the agitation at Mussoorie, and the Fire Brigade Driver, Jeet Bahadur, at Pauri, District Pauri Garhwal. Aslo to be included amongst the list of persons to be considered for compensation is the dependents/legal representatives of Rajesh Negi reported to be missing after the event of firing at Muzaffarnagar on 2 October, 1994.

Of the women molested and raped, the C.B.I. reports their numbers as 24, the Court views the circumstances of these cases the same as death and grievous hurt. Of those ladies who were subjected to rape, of the seven cases investigated by the C.B.I., each shall be entitled to receive compensation being the same as for victim of death, at Rs. 10,00,000.00. Of those who were molested, of the seventeen cases investigaged by the C.B.I., their modesty was outraged, and for each of the ladies the compensation shall stand at Rs. 5,00,000.00.

Of every person identified with grievous hurt, each of such person shall be entitled to a compensation of Rs. 25,000.00, and such of those who suffered � permanent disability, each shall be entitled to Rs. 2,50,000.00.

Of those who were detained and lodged in far off Jails, 398 in number, denied access to the nearest Magistrate to secure their liberty of being enlarged on bail, the compensation for violating the rule of law shall stand at Rs. 50,000.00 to each to the person detained and referred to in the information called by the Court and filed by the Government Advocate, U.P.

The names of the persons entitled to receive compensation will be scrutinised and identified and drawn up as a list. For this purpose, this Court considers it appropriate and fit to appoint a Committee consisting of the two present Commissioners, as of date at Garhwal and Kamaun. They will draw out a list of those entitled to compensation and send the list to the Government within two months from today under intimation to this Court. The names of the ladies reported by the C.B.I. to have been subjected to molestation and rape will be dealt with as confidential and classified information in all communications and correspondence by the Committee, aforesaid.

The amount representing compensation be placed in the hands of the Commissioners of the Division, concerned, Garhwal or Kumaun, as the case may be, by the State of U.P. within one month of the list being so submitted by the Committee of the Commissioners, aforesaid. The amount will be disbursed to the persons, entitled, within one month. Of the compensation which is to be received by those entitled, of the amounts of Rs. 2,50,000.00 and above will be available to the recipients as Government of India, Tax Free Relief Bonds, 1995.

The State of U.P. shall be free to consider whether the compensation as has been awarded by this Court or any part thereof would be liable to be recovered from those persons in public service who face trial or consequential administrative action.

Damages and compensation for constitutional wrongs committed subjecting injuries to the class of people of Kumaun and Garhwal for their only fault that they were securing their civil rights on the guarantee already given by the Legislature, as discussed in the judgment, the repairment to the people of Kumaun and Garhwal divisions shall stand related to their population (5,926.146 : Kumaun - 2,943,199, Garhwal - 2,982,947) in the equation of a rupee per month per person for a plan period of five years and this compensation shall be invested amongst the population of Kumaun and Garhwal earmarked specifically for a programme for the upliftment of the women; 50 paise of this reparation shall come from the State of Uttar Pradesh and the other 50 paise from the Union of India. This would be in addition to the normal plan allocation which this area would receive as what the Court is suggesting is damages beyond the normal allocation. The details of the allocation will be chalked out and formalised at a meeting which will be called by the Commissioners of Kumaun and Garhwal representing (i) Members of the Parliament of the area; (ii) Members of the Legislative Assembly of the area ; and (Hi) the District Magistrates of the district concerned.

Of investigations which have not been completed by the C.B.I. as of date, these should be finalised, and prosecution of offenders found prima facie accused of various offences should see charge-sheet being submitted against them without delay or within two months with a copy of such charge-sheet filed on the record of these cases before this Court.

Cross-version or cross-allegations regarding shooting and deliberate and wanton killings, and also of the dead who were initially reported as alive but missing and abetting or creating or permitting or lending occasions to commission of rape and molestation, particularly of the events at Mussoorie. Khatlma and Muzaffarnagar be investigated and separare reports on them u/s 173 of the Code of Criminal Procedure, 1973 be submitted to the competent Court within two months with a copy of such reports filed on the record of these cases before this Court.

Suspension or otherwise, of administrative action befitting the prima Jade cases against those persons in service of the State or the Union, booked for trial, to be considered by the competent appointing authorty on the merits of the nature of allegations contained in the charge sheet.

Trial for offences within the districts of the Kumaun region is to be held by the Court in Sessions Division at Nalnital and for the offences within the districts of Garhwal region, Haridwar and Muzaffarnagar, to be held in the Court in Sessions Division at Dehra Dun. Where a Special Court does not exist, In any of the two Sessions Divisions, as above, it shall be established by the State of U.P. in consultation with the High Court, within one month and until so established, the charge-sheet, in context, shall be submitted into the Court of the Chief Judicial Magistrate, and dealt with in accordance with Chapter XVI of the Code of Criminal Procedure.

The Magistrates and the Presiding Officers of the Sessions Division trying these offences be provided adequate securitep and facilities and staff, etc. by the State of U.P. in consultation with the High Court.

The proceeding in trial for offences against women be held in camera.

The State of Uttar Pradesh may consider establishing a Human Rights Commission for complaints as are alleged within the State, as envisaged in the Human Rights Act, 1993, a legislative intent of the Parliament which Is being ignored by the State for long.

The Government of India should seriously consider the Ninety Second Report of the Law Commission of India on Damages in Applications for Judicial Review : Recommendations for Legislation, forwarded by the then Chairman of the Law Commission, by his letter No. F. 2(8)/83-L.C. dated August 16, 1983, as damages in public law has already been accepted as a known phonomenon for consideration of courts.

The trials before the Magistrates or Court of Sessions shall be uninfluenced by any observations in the judgment of the Court herein. The trial shall be on merits of each case as it emerges during the course of the proceeding in accordance with the provisions of the Code of Criminal Procedure.

All the writ petitions, thus, succeed. Of the writ petition which saw transfer by the orders of the Supreme Court and were re-numbered as Writ Petition Nos. 39919 of 1994, 39920 of 1994, 39921 of 1994 and 40216 of 1994 and the writ petition which was initially filed in this Court and carried the order dated 7th October, 1994, being Writ Petition No. 32982 of 1994 shall entitle the Petitioners or set of Petitioners in the respective writ petitions to costs which are quantified at Rs. 10,000.00, recoverable from the State of Uttar Pradesh.

The Registrar, High Court shall send a copy of this judgment within a week to:

(a) The Law Commission or India, New Delhi;

(b) The Director, Central Bureau of Investigation, New Delhi;

(c) The Commissioners: Kumaun and Garhwal Division;

(d) The District Judges at Dehradun, Haridwar, Muzaffarnagar, Nainital, Chamoli and Pauri;

(e) The Government of India, Ministry of Home Affairs, New Delhi.

The Writ petitions, thus, succeed with costs as indicated.