While explaining Bengal Police Regulation Calcutta High Court in ASSOCIATION FOR PROTECTION OF DEMOCRATIC RIGHTS Vs. STATE OF WEST BENGAL AND OTHERS observed :
84. On the perusal of the Regulations it would appear that the Police ‘ Regulations provide a series of checks and balances for the use of firearms by the police force for the dispersion of unlawful assemblies. Regulation 151 provides that when a Magistrate is present with an armed party, employed for the suppression of a riot or the dispersion of unlawful assemblies, he shall give the warning prescribed by Regulation 153(c)(ii). Regulation 154 provides for general rules relating to the use of firearms. Regulation 155 specifies that the Magistrate may himself give the order to open fire or may direct officer in command to issue the order. In case the Magistrate is not present the officer himself can issue the order provided he considers it to be necessary. Regulation 156 provides for action to be taken after the police have used firearms. A detailed report is to be submitted to the District Magistrate. Regulation 157 provides that whenever the police have used firearms a full executive enquiry to ascertain whether the firing was justified and whether the Regulations were obeyed, shall be held as soon as it can possibly be arranged. Thus, it appears that the Regulations provide a comprehensive guide for the control of the use of firearms. We are unable to accept the submission of the learned Advocate General that since the Regulations 152 to 154 were complied with, the police cannot be accused of indiscriminate firing at the Nandigram “unlawful assembly”. We are of the considered opinion, that if Regulations 151, 152, 153 and 154 are strictly complied, there would be no scope for indiscriminate firing into a huge crowd. The Regulations permit only target specific shooting, which would be impossible when the police is faced with a crowd of thousands. Firstly it would be very difficult to identify the targets. Even if they are identified, they would have to be isolated before they could be shot. Therefore, detailed provisions have been made in these Regulations about the method and manner of firing. The object is clearly to minimise the injuries. Regulation 151 gives the power to the Magistrate when present to direct the Officer-in-Command to use force or open fire. Regulation 152 specifically provides for the precautions which have to be observed by a police officer in command of an armed party for the suppression of a riot or the dispersal of an unlawful assembly. The Regulation is as under:
152.-(i) he should so dispose it that it has effective a field of fire as circumstances permit;
(ii) he shall not bring it so close to a mob as to risk either its being overwhelmed by a sudden rush or its being forced to inflict heavy casualties;
(iii) if, in order to minimise injuries from missiles, the party is extended, he shall not allow it to extend so far as to affect his ability to exercise strict fire control;
(iv) he should order bayonets to be fixed;
(v) he shall give orders to the party to load, when he thinks fit loading without such orders it strictly forbidden;
(vi) for the purposes of fire control he shall ordinarily divide his force into sections of not more than ten men each and place each section under a responsible commander;
(vii) if the party is, or is likely to be, attacked from two directions, he shall post the men in two ranks, each facing one of those directions, with sufficient space between such ranks to enable him to move between the ranks and to control the firing; and
(viii) generally he should follow the riot drill instructions as closely as circumstances permit.
85. A perusal of the aforesaid would show that it is the bounden duty of the officer in command that the armed party shall be so disposed as to have an effective field of fire as circumstances permit. The armed party shall not be brought so close to the mob as to inflict heavy casualties. The firing should always be under his strict control to minimize injuries. Even loading and unloading of the arms can only be done only specific orders of the officer-in-command. The armed forces have to be divided into small sections of not more than ten men. These directions contained in Regulation 152 are mandatory in nature. Therefore, no laxity can be permitted in their performance.
86. Regulation 153 lays down the eventualities in which fire arms permitted to be used. Undoubtedly, firearms are permitted to be used for the dispersal of unlawful assemblies. The procedure to be followed in such circumstances is as under:
153 (c) Use of firearms to disperse an unlawful assembly,:
(c) An order to fire upon a crowd should be regarded as an extreme measure to which recourse should be had only in the last resort when it is absolutely for the defence of life or property or when a Magistrate, an Officer-in-Charge of a police station or police officer superior in rank to such officer considers it impossible to disperse a mob by any other means.
(iii) Before an order is given to fire upon a crowd the Magistrate or, if no Magistrate is present, the police officer in command shall give full and sufficient warning to the rioters that they will be fired upon if they do not disperse immediately.
(ii) All ranks engaged in the suppression of a riot or in the dispersal of a riotous assembly must await the orders of a Magistrate, an officer-in-Charge of a police station or a police officer superior in rank to such officer before firing.
87. A perusal of this provisions would show that an order to fire upon a crowd should be regarded as an extreme measure to which resort should be made only in the last resort. When it is absolutely necessary for the defence of life or property. An order to fire upon a crowd can also be made when a Magistrate, Officer-in-Charge of a police station or police officer superior in rank to such officers considered impossbile to disperse a mob by any other means. Due to the drastic consequences that the gunfiring would have, it has been made mandatory for the police officer in command to give full and sufficient warning to the rioters that they will be fired upon if they do not disperse immediately.
88. Regulation 154 is as under:
(i) Before a police officer fires or gives order to fire, he shall give warning of his intention as is possible.
Note.-In the event of the exercise of the right of private defence it may not always be possible to give warning without the offender being enabled to fulfil his design against which the right is being exercised.
(b) Firing should always be controlled and directed or a specified target.
(c) No better hurt than is unable should be inflicted.
(d) Firing should cease as soon as its object is achieved.
89. A perusal of this Regulation would show that again the giving of warning prior to shooting has been made mandatory, This Regulation clearly forbids any indiscriminate firing on the crowd, as it is mandatory to direct the firing at a specified target. No material has been placed before the Court to show that the mandatory provisions of these Regulations were followed. No individual has been named as a leader or a target. We are unable to conclude that any of the directions contained under the Police Regulations 152, 153 and 154 had been complied with.
90. Regulation 155 provides as under,:
(a) The police officer in command shall give the order to use the force or to fire when so directed by a Magistrate under Regulation 151(iii) or, if no Magistrate is present, when he himself considers it to be necessary.
(b) He shall direct the firing in such a way as to secure immediate effect with a minimum of injury. Firing over the heads of the crowd or in any direction except on members of the crowd is strictly forbidden; as being likely both to cause injury to innocent persons at a distance and to embolden the participants in the disturbance by having no visible effect. Before he gives the actual order to fire, he should specify the range, the target and the number of rounds to be fired.
(c) He is responsible that no greater volume of fire is used than the circumstances demanded. He should normally order firing by specified individuals or by files: but he may order firing by sections, or volleys by not more than half the part at a time, if the attitude of the mob makes this imperative for the protection of his officers or for the protection of the life and property of others.
(d) He shall give the order to ceasefire as soon as the mob shows the slightest inclination to retire or disperse. The Magistrate, if any is present, has authority to direct him to give such order.
91. We have already noticed above that a strict compliance of Regulations 151 to 154 would ensure that there would be very little chance of indiscriminate firing. Sub-clause (b) of Regulation 155 also specifically forbids firing in such a way which would not secure immediate effect with the minimum of injury. This Regulation also provides that the firing has to be at specified target within its specified range. The order has to specify also the number of rounds to be fired. However, in the later part of the same Regulation it is provided that firing over the heads of the crowds or in any direction except on the members of the crowd is strictly forbidden. Justification that is sought to be given for this direction is to prevent injury to innocent persons who may be standing at a distance. In our opinion, on the face of it. Regulation 155(b) would seem to be violative of Articles 14, 19(1)(b) and 21 of the Constitution of India. Even though it is worded for protection of innocent bystanders, but in essence the mandate of the clause seems to be to fire into the crowd. It is difficult to perceive a situation where in a crowd of thousands, an officer would be able to single out the targets and identify them for the firing party. The intention of this clause would, therefore, seem to be to crush the demonstration rather than to control or disperse an unlawful assembly. This clause, in our opinion, can be easily abused by the officer commanding the armed party. The possibility of numerous innocent persons being killed on the basis of wrong identification mistaken identity, negligence and sheer inaptitude cannot be ruled out. In our opinion, such a Regulation would be clearly arbitrary and violative of Articles 14 and 21 of the Constitution of India. This clause would not specify the test of reasonableness laid down in Maneka Gandhi’s case (supra). In order to fall within a reasonable restriction the clause would have to be just reasonable and fair. Learned Advocate General had accepted that even the law under Article 13 would have to be in conformity with Articles 14, 19 and 21 of the Constitution of India.