It may therefore now be taken as well-established that where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any Constitutional or legal right or any burden is imposed in contravention of any Constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case of breach of any fundamental right of such person or determinate class of persons, in this Court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons. Where the weaker sections of the community are concerned, such as under-trial prisoners languishing in jails without a trial inmates of the Protective Home in Agra or Harijan workers in case in road construction in the Ajmer District who are living in poverty and destitution, who are barely eking out a miserable existence with their sweat and toil, who are helpless victims of an exploitative society and who do not have easy access to justice, this Court will not insist on a regular writ petition to be filed by the public spirited individual espousing their cause and seeking relief for them. This Court will readily respond even to a letter addressed by such individual acting pro bono publico.
CALCUTTA HIGH COURT
DIVISION BENCH
( Before : S.S. Nijjar, C.J; Pinaki Chandra Ghose, J )
ASSOCIATION FOR PROTECTION OF DEMOCRATIC RIGHTS — Appellant
Vs.
STATE OF WEST BENGAL AND OTHERS — Respondent
SK. ANWAR ALI — Appellant
Vs.
AMIT KIRAN DEV, CHIEF SECRETARY OF THE STATE OF WEST BENGAL AND ANOTHER — Respondent
A.S.T. No. 205 of 2007, CAN No’s. 3204 and 3205 of 2007 and CPAN No. 665 of 2007
Decided on : 16-11-2007
- Arms Act, 1959 – Section 25, Section 27, Section 35
- Bengal Police Regulations, 1943 – Section 150, Section 151, Section 152, Section 153, Section 154, Section 155, Section 156, Section 157
- Constitution of India, 1950 – Article 13, Article 13(1), Article 13(2), Article 13(3), Article 136, Article 137, Article 14, Article 142, Article 142(1), Article 16, Article 162, Article 19, Article 19(1), Article 19(2), Article 21, Article 226, Article 227, Article 300A, Article 32, Article 372, Article 395
- Criminal Procedure Code, 1973 (CrPC) – Section 129, Section 130, Section 131, Section 132, Section 144, Section 145, Section 154, Section 156(3), Section 173
- Government of India Act, 1943 – Section 204(2)
- Industrial Disputes Act, 1947 – Section 25F
- Penal Code, 1860 (IPC) – Section 120B, Section 141, Section 147, Section 148, Section 149, Section 186, Section 302, Section 307, Section 320, Section 321, Section 332, Section 333, Section 34, Section 341, Section 349, Section 353, Section 482, Section 506
- Police Act, 1861 – Section 12
- Prevention of Corruption Act, 1947 – Section 5(2), Section 5(4)
- Prevention of Damage to Public Property Act, 1984 – Section 3(2)
JUDGMENTS.S. Nijjar, C.J.—On 15th of March, 2007 this Court passed the following order:
1(a). In addition to the order passed in this suo motu petition, there shall be a further order in this writ petition in terms of prayer clause ‘1’:
1) An interim order restraining the respondent Nos. 2 to 7 preventing the petitioner organizations other NGOs and voluntary aid organization from reaching Nandigram to provide assistance to injured and deceased villagers.
1(b). We further direct the District Administration to ensure that the unclaimed dead bodies are handed over to the appropriate authorities and the identified dead bodies are handed over to the lawful claimants after due legal formalities have been concluded, such as post-mortem and inquest report, so that the relatives are able to perform the last rites of the deceased.
IN THE HIGH COURT AT CALCUTTA
Special Jurisdiction (Contempt)
In the matter of: The Court on its own Motion
1(c). All the newspapers throughout the Nation have today carried as a lead Article-description of the action which has been taken by the West Bengal Police against agitating farmers and other villagers in Nandigram village. Prima facie in a wholly indefensible manner innocent people have been shot down by none other than the uniformed police officers. There are at this stage many conflicting versions as to what actually transpired, but one conclusion is echoed by all those who are present in Court; the newspapers and the electronic media that there have been a large number of deaths which are directly attributable to the prolonged gunfire by the police of the State of West Bengal.
1(d). It seems as if the police department which is under the control of the Home Department is not even aware of the existence of Article 21of the Constitution of India; let alone the ambit of freedoms gurantees to the citizen of this Country, under this Article. This Article specifically guarantees that -“No person shall be deprived of his life or personal liberty except according to procedure established by law.” Oblivious of the aforesaid guarantee, the police has resorted to gunfiring on a large crowd, protesting against the proposal to acquire their land.
1(e). Prima facie we are satisfied that this action of the police department is wholly unconstitutional and cannot be justified under any provisions of law. There are normal remedies available to the State as also to the owners of the lands for redressal of the grievances with regard to the acquisition of land. Such kind of force cannot be justified except in the cases of armed insurgency or warlike situation. Innocent farmers and villagers can hardly be put into the aforesaid bracket. We take serious note of the observations made by His Excellency, the Governor of West Bengal as reported in the newspaper – “Hindustan Times”, on the front page under the news item headlines – “GOVERNOR REACTS” which is quoted hereinbelow:
I am filled with cold horror
The News of deaths by police firing in Nandigram this morning has filled me with a sense of cold horror. We will soon know more details of the sequence of events that led to this tragedy. But the point uppermost in my mind is not ‘who started it’, ‘who provoked it’ or whether there were agent-provocateurs behind it. Investigations will reveal that. The thought in my mind – and of all sensitive people now is – ‘Was this spilling of human blood not avoidable ? What is the public purpose served by the use of force that we have witnessed today ?’
Force against anti-national elements, terrorists, extremist insurgents, is one thing. The receiving end of the force used today does not belong to that order.
What I advised Government over the last two days, as I received inputs of rising tension in Nandigram, Government knows. It is not my intention to enter into blame-fixing. But I cannot be so casual to the oath I have taken as to restrict my reaction to a pious expression of anguish and outrage. I trust the Government will not only go into the whys and wherefores of this tragic occurrence but will also ensure that it leaves no room for a repetition of the kind of trauma witnessed today.
I leave it to the conscience of official responsible to atone for the event in the manner they deem fit. But I also aspect the Government to do what it thinks is necessary to mitigate the effects of this bitter March 14, and to do it visibly and fast.
Gopalkrishna Gandhi
(This statement was released from Raj
Bhavan on Wednesday).
1(f) Prima facie we are of the opinion that these observations clearly depict the extent of the tragedy which has overtaken the population of Nandigram in particular and the population of West Bengal in general. We, therefore, issue notice to the State of West Bengal in general. We, therefore, issue notice to the State of West Bengal through the Ministry of Home Affairs to file a detailed affidavit setting out the reasons for the action which has been taken against the population of Nandigram by resorting indiscriminating firing by the police. We have also received a communication by FAX from an institution known as “National Alliance of People’s Movements’. We direct that the aforesaid letter be marked as Annexure- ‘A’ and be also treated as Public Interest Litigation.
1(g). We also issue notice to this petition when it comes up.
1(h). The affidavits should clearly indicate the entire history and the steps taken by the Government for maintaining the law and order. The affidavit should also identify the dignitary or any official which actually issued the order to fire upon the population of Nandigram. The affidavit should also disclose the material on the basis of which the order of firing was issued. The affidavit should further state as to what proceedings in accordance with the departmental rules and under the general Crime Law have been initiated against any official who is found to have prima facie transgressed the power vested in the official or the other dignitaries. In view of the absolutely volcanic situation created, we are constrained to direct the State of West Bengal to ensure the safety and well-being of all the general public in the area. The State is also directed to take adequate measures to provide medical facilities to the injured villagers.
1(i). In view of the emergent situation and the possibility of relevant evidence being lost/destroyed, we find it a fit case to direct that the matter be investigated by a Special Team, deputed by the Director of CBI. The team shall visit Nandigram area and any other surrounding affected area and collect the entire relevant material to be presented before this Court in the form of a report. Let the CBI team be despatched to Nandigram forthwith. The learned Standing Counsel for CBI, Mr. Ranjan Roy is directed to communicate this direction to the Director of CBI, for implementation forthwith.
1(j). Let both the matters be heard analogously.
1(k). Xerox plain copy of this order duly countersigned by the Assistant Registrar (Court) be given to the learned Counsel for the parties on usual undertaking.
S.S. Nijjar, C.J.
Pinaki Chandra Ghose, J.
2. Pursuant to the aforesaid order the CBI has submitted a preliminary report on 22nd of March, 2007. After perusing the report, a detailed affidavit led by the State of West Bengal and the preliminary report submitted by the CBI on 22nd of March, 2007, this Court passed the following order on 2nd of May, 2007:
2(a). The matter has been called out for hearing.
2(b). We have perused the affidavit filed by the State of West Bengal. We have also perused the report submitted by the Central Bureau of Investigation on 22nd March, 2007. In paragraph 21 of the said report it has been stated as follows:
It is most respectfully submitted that the CBI Team has confined its enquiries to the mandate given by this Hon’ble Court. It would be possible to ascertain the quantum of force used and its justification and the actual happenings only in a thorough and detailed investigation.
2(c). In view of the request made by the Central Bureau of Investigation, it is necessary to know the present situation that is prevailing in the troubled area of Nandigram. The learned Advocate General wants time till tomorrow to apprise the Court of the steps taken by the State to ensure the life and liberty of the citizens of Nandigram and the surrounding area in terms of Article 21 of the Constitution of India.
2(d). Let the report submitted by the Central Bureau of Investigation be kept in a sealed cover till further order.
2(e). Let the affidavits filed on behalf of respondent Nos. 1 to 7 before this Court be kept with the record.
2(f). Leave is granted to Mr. Bandyopadhyay to file an affidavit disclosing the subsequent events since 14th March, 2007.
2(g). Let xerox plain copy of this order duly countersigned by the Assistant Registrar (Court) be given to the learned Advocate General, Mr. Amjad Ali and Mr. Kalyan Bandhopadhyay, learned Counsel on usual undertaking.
(S.S. Nijjar, C.J.)
(Pinaki Chandra Ghose, J.)
3. Pursuant to the aforesaid order, the State of West Bengal filed an affidavit running into 404 pages. Detailed affidavits were filed by the learned Counsel appearing for the other parties in the case. In the meantime, Writ Petition No. 8596 [W] of 2007 had been filed by the Bar Association, High Court and Ors. Lengthy submissions were heard on 3rd of May, 2007 and the following order was passed:
3(a). In terms of the leave granted by this Court the petitioners have moved the writ application being W. P. No. 8596 [W] of 2007 wherein it is prayed in terms of prayer (a) to the following effect:
(a) To grant leave to the petitioners to move this Public Interest Litigation for the cause and benefit of the people of Nandigram, Sonachura, Bhangabera, Adhikaripara, Gokulnagar, Khejuri etc. and its surrounding villages in the police station of Nandigram, District- Purba Midnapur.
3(b). We have heard the learned Counsel for the parties at length.
3(c). Copies of the status report filed by the learned Advocate General have been made available to Mr. Sakti Nath Mukherjee. Mr. Amjad Ali and Mr. Kalyan Bandyopadhyay, learned Counsel appearing for the petitioners.
3(d). In the status report it has been stated as follows:
Thereafter, the DIG, Midnapore Range had a formal meeting with Shri Subhendu Adhikari at Tamluk on the 16th April, 2007. He agreed entirely with the DIG and SP on the need to the restore normalcy and the following decisions were taken:
(1) All political party peace meeting should be held on 21st April, 2007 at SP, DB office and the following points should be discussed in the said meeting:
(c) Displaced people of the affected areas of Nandigram PS, Khejuri PS and Bhabanipur PS to return home simultaneously;
(d) Formation of G.P. wise peace committees consisting of representatives of all political parties, Civil and Police administration;
(e) Repairing of the roads in the affected areas in presence of the peace committees;
(f) Free police and civil administration movement in the affected area;
(g) Impartial investigation of cases;
(h) Normal political activities like meetings, processions etc. to be held only after permission of civil/police authorities.
3(e). A persual of the same would show that the concerned Deputy Inspector General and the Superintendent of Police have taken certain decisions for restoration of normalcy in the troubled area. These suggestions need to be considered by the petitioners so that a comprehensive decision can be taken by all the concerned parties to ensure that normalcy is restored in the said area.
3(f). During the course of hearing, we have had an occasion to hear different points of views with regard to the area which was initially earmarked for the development of Special Economic Zone; the exact extent and effect of the Notification dated 12th September, 2006 read with Notification dated 19th March, 2007 and then again on 29th March, 2007. It was submitted quite emphatically by Mr. Mukherjee that in view of the order passed on 15th March, 2007 read with the conclusion reached by the Central Bureau of Investigation (hereinafter referred to as CBI) in its report submitted before this Court, CBI enquiry ought to be continued. A series of objections had been taken to the continuation of the CBI enquiry by the learned Advocate General on the ground that without the consent of the State Government, no order can be passed directing the CBI enquiry. Learned Advocate General has also pointed out that in view of the Notification issued by the State, the root cause of the problem in the Nandigram area would be removed. This, however, is seriously controverted by Mr. Amjad Ali, learned Counsel, who submits that the Notifications issued by the State Government are a mere camouflage to prevent any opposition to the compulsory acquisition of land measuring 38,873.37 acres of land. This according to Mr. Amjad Ali would lead to complete destruction of 700 villages.
3(g). On the other hand Mr. Mukherjee, quite strenuously argued that there is no impediment in the Court directing the CBI enquiry purely for the purpose of collection of evidence to be presented before the appropriate authority for appropriate orders. According to Mr. Mukherjee, the High Court in exercise of its power under Article 226 of the Constitution of India has undoubted jurisdiction to constitute any special team for the purpose of investigation and collection of materials to be presented before the Court for the purposes of passing orders to do complete justice in the facts and circumstances of the case. In support of the aforesaid submission, the learned Counsel has relied on a judgment of the Supreme Court in the case of Bandhua Mukti Morcha Vs. Union of India (UOI) and Others, .
3(h). Controverting the aforesaid submission, the learned Advocate General has relied on a reference order of the Supreme Court passed in Civil Appeal Nos. 6249-6250 of 2001 dated 8th November, 2006 whereby the question- ‘Whether the Court can order the CBI established under the Delhi Special Police Establishment Act, 1946 to investigate a cognizable offence which is said to have been taken place within the territory of a State without the consent of that State Government has been referred to a larger Bench.’
3(i). Learned Advocate General submitted that in view of the reference order, this Court cannot direct the CBI to conduct any further investigation.
3(j). In reply to the aforesaid submission of the learned Advocate General, Mr. Kashi Kanto Maitra, learned Senior Counsel has submitted that the learned Advocate General cannot possibly take the objection which has been taken with regard to the reference of the matter to the CBI. At the time when the order directing the CBI to investigate was passed on 15th March, 2007, no objection was taken to the passing of such an order. The aforesaid order was not objected to either in appeal or in a review application seeking either recall or modification of the aforesaid order. In fact, the CBI was permitted to continue the investigation and has also submitted an interim report which has been placed on the record of this proceeding. Learned Counsel has reiterated that the Court would have the jurisdiction under Article 226 to continue the CBI enquiry at least for the purpose of collection of evidence for proper adjudication of the matter by this Court at the final hearing of the matter.
3(k). It is submitted by Mr. Bandopadhyay, learned Counsel for the petitioners that the Hon’ble Chief Minister of the State on the Floor of the Assembly has specifically admitted that he does not have any objection in respect of the order directing the CBI to make the enquiry.
3(l). During the course of hearing we had permitted the Bar Association. High Court, Calcutta and others to move writ petition which relates to all the events which have taken place in the troubled area of Nandigram and the surrounding areas, prior as well as subsequent to the order dated 15th March, 2007. We have issued notice in the aforesaid writ petition and copy of the writ petition has been handed over to the learned Advocate General. Mr. Mukherjee has submitted that on the one hand the State Government is claiming that the situation in Nandigram has improved, on the other hand the learned Advocate General is claiming that the police is not being permitted even entry into the troubled area, as there are two warring groups engaged in a pitched battle.
3(m). We have considered the submissions made by all the learned Counsel. A perusal of the writ petition clearly shows that the innocent villagers living in the troubled area have been victimized purely due to political differences between different political parties.
3(n). We cannot remain totally unaffected, like mute spectators, by the miserable plight of the villagers only on the ground that there are completely divergent views expressed about the ground realities by the different sides. Article 21 of the Constitution of the India guarantees life and liberty of each individual. In view of the facts and circumstances which have been pointed out in the various pleadings as well as in the oral submissions made by the learned Counsel, we are prima facie of the opinion that the people in the Nandigram area have been denied their fundamental rights which are guaranteed under Article 21 of the Constitution of India.
3(o). As an interim measure, we, therefore, direct the State Government to ensure that the Ferry Service is immediately restored between Nandigram and Haldia. The State Government is also directed to ensure that there is no obstruction preventing the people of Nandigram and other adjoining villages from having easy and safe access to markets, bazaars, hatt, schools and colleges. In continuation of our order dated 15th March, 2007 we further direct the State to secure free and adequate medical assistance to the victims of the carnage at Nandigram and the adjoining villages during the months commencing from January, 2007 till date, since large number of people have been rendered totally homeless and without any means of sustenance. We further direct that the State Government will make available free ration to the affected families particularly the supply of rice, wheat, kerosene and other essential commodities.
3(p). The State Government is directed to file affidavit-in-opposition in response to the supplementary affidavit filed by Mr. Kalyan Bandopadhyay within a period of three weeks from date and reply thereto, if any, be filed one week thereafter.
3(q). Let the matter appear in the list one week after vacation.
3(r). Xerox plain copy of this order duly countersigned by the Assistant Registrar (Court) be given to the learned Advocate General, Mr. Saktinath Mukherjee, Mr. Amjad Ali and Mr. Kalyan Bandopadhyay, learned Counsels for the petitioner on usual undertaking.
(S.S. Nijjar, CJ.)
(Pinaki Chandra Ghose, J.)
4. Thereafter, the matter was heard at length on numerous dates. We will now consider the matter in detail.
5. We had passed the aforesaid orders as there was a divergence of opinion on a number of very important questions which would arise in this case. For the purpose of these orders we may briefly notice the facts which have been elaborately set out in the pleadings of the parties.
6. Facts as pleaded and narrated by the Counsel for the petitioners are that in August, 2006 wide publicity was given in various newspapers that about 25,000 acres of land of Nandigram area would be acquired by the State Government for setting up a chemical hub by Salim group and one Shipbuilding workshop would be set up by Pawan Ruia group. The intention of the Government to acquire the agricultural land was reinforced on 12th September, 2006, Chief Executive Officer, Haldia Development Authority (hereinafter referred to as HDA) vide memo No. 888/HDA/7M-72/05 dated 12th September, 2006 sent a revised site plan to the Director of Industries along with the list of Mouzas and other proposals in the proposed Special Economic Zone (SEZ) for perusal and necessary action.
7. On 27th December, 2006, Sri Laxman Seth, Member of Parliament and Chairman of HDA addressed a meeting at Nandigram Bazar where he categorically stated that lands would be acquired at Nandigram. At this meeting, he also made a statement that the necessary notices would be hung up in the Local Panchayat Offices on 3rd January, 2007. The very next day, i.e., on 28th December, 2006 HDA issued a notification stating therein that HDA had decided to set up a Chemical Hub at Nandigram and Khejuri Block. As a result of these actions people of Nandigram became agitated, organised themselves and started raising slogans against the land acquisition. A large number of people had gathered in front of Kalicharanpur Gram Panchayat, Sonachura Gram Panchayat and Kadambini Gram Panchayat on 3rd January, 2007. The first incidence of violence had occurred on that day. This violence continued on a daily basis. Details of which have been given by the parties in the respective affidavits. It is not necessary to recapitulate in detail the incidents except to make a short list of dates on which the violence occurred on 4th January, 5th January, 6th January, 7th January, 8th January, 16th January, 17th January, 25th January, 26th January, 2007. During this period CPI (M) had put a party camp in the areas of Bhangabera near Sonachura and Sarkarchak and Tehatta Bazar (near Gokulnagar). Outsiders ‘musclemen with arms and ammunitions’ freely roamed in these camps. There were continuous shooting matches between the different groups. Complaints were lodged with the police. Details of these complaints have been given in the pleadings but no action was taken on them.
8. On 12th February, 2007, the Chief Minister of West Bengal, Sri Buddhadeb Bhattacharya, Member of Politburo of Communist Party of India (Marxist) [(CPI (M) addressed a meeting of CPI(M) at the place adjacent to Nandigram and stated that no land would be taken up from unwilling persons. But on the very next day, Laxman Seth as Chairman at HDA as well as the local Member of Parliament held press conference of CPI(M) Party Office, Purba Midnapore at Tamluk and stated that the aforesaid land would be acquired. As a result of this contradiction people became apprehensive and started to organise themselves. It is, however, noteworthy that no untoward incident happened during the Madhyamik Pariksha (Secondary Education), 2007 which was held from 22nd February to 5th March, 2007. This peace was maintained on the basis of the decisions taken at a meeting of all political parties for maintenance of peace in Purba Midnapore District till 19th February, 2007.
9. On 8th of March, 2007 exactly one day after the examination finished, violence erupted again. It is alleged that CPI(M) started firing and the police personnel did not take any steps to prevent them. In this incident, a housewife, namely, Nilima Das, aged about 40 years and Jharna Kajali, a student of Class-V of Sonachura High School were injured. Jharna lost two fingers of her right hand. Again complaints were made to the police but no action was taken. The District Magistrate held another meeting on 10th March, 2007 in which a resolution was passed to repair the damaged roads in the area.
10. On 12th March, 2007 a meeting was held under the leadership of Arun Gupta, Inspector-General (Western Range) for taking action to restore peace at Nandigram. More than 3000 police personnel were brought from outside the District. On 13th March, 2007 Suvendu Adhikari, Member of Legislative Assembly of East Midnapore Constituency sent a fax message to the Chief Minister of West Bengal whereby it was pointed out that the presence of the police authorities could create a panic among the common people of Nandigram. It would be appropriate to reproduce the entire fax message at this stage:
Suvendu Adhikari Vill.: Kankuli Member P.O.: Contai West Bengal Legislative Assembly Dist.: Purba Medinipur Ph.: 03220-255 599 M. 9733064595/ 9434104373 Date: 13.3.2007 To Sri Buddhadev Bhattacharya, Hon'ble Chief Minister of Govt. of West Bengal, Writers' Buildings. Kolkata- 700 001 Respected Sir,With profound regards I beg to pray to your magnanimity to necessary step to stop police action at Nandigram and which will going to be started tomorrow.
In this regard I bet to state that out of 17 G. P. only 3 G.P.s are disturbed due to present awkward situation due to misunderstanding in connection with the acquisition of cultivated land at Nandigram. The daily lives the people of rest G.P.s are normal.
Me seems you are well aware about the present precarious situation of Nandigram. Yesterday I have enlightened the total fact of the Nandigram at Bidhan Sabha as well as to your goodself.
Under the circumstances, it will be created panic to the common people of Nandigram if the police will start action thereon which is reported to be started tomorrow.
In view of the above it will be more fruitful if you will arrange an all party meeting at the District level in presence of State level officials.
I am assuring you that we extend all sorts of co-operation to regain the peace at Nandigram.
I do believe that you will also admit my proposal and take necessary step accordingly.
I rely upon your good wishes in respect of the regain the peace at Nandigram.
Once again I appeal to your goodself to take appropriate step to stop police action at Nandigram which will help to regain the peace at Nandigrana.
With sincere most thanks to you in anticipation.
Yours faithfully Sd/ Suvendu Adhikari 13/03/07 (SUVENDU ADHIKARI) M.L.A. West Bengal Seal. (Suvendu Adhikari) M.L.A. (W.B) TRANSMISSION VERIFICATION REPORT Time: 13:03::2007 04:05 Date, Time 13/03 04:04 Fax No./Name 03322141341 Duration 00: 00: 37 Page(s) 01 Result ok Mode Standard11. On 14th March, 2007 the police under the leadership of Debasish Baral, Additional Superintendent of Police, Tamluk, Shyamal Bhattacharya, Additional Superintendent of Police, Headquarters, Swapan Sarkar, Sub-Divisional Police Officer, Haldia entered Nandigram along with 300 police personnel with arms and ammunitions. They were accompanied by local leaders of CPI(M) and CPI(M) cadres at least 300 in number. The police started throwing tear gas shells all the crowd which had gathered. It was a large crowd of at least 5000 persons. On the other flank from the side of Bhangaberia Bridge (adjacent to Khejuri) 500 armed police personnel came under the leadership of Arun Gupta, Inspector-General of Police (Western Range), Tanmoy Roychowdhury, Additional Superintendent of Police, Haldia, Amit Hati, Officer -in-Charge. Khejur Police Station and Sandip Singha Roy, the then Officer-in-Charge, Sutahata Police Station. They were accompanied by about 500 cadres of CPI(M) who were clothed in Khakee Police dress. They were wearing sandals on their feet. They were also wearing blue and white caps with a logo (Shaheed Bhagat Singh). They started throwing tear gas shells and within a minute started firing rubber bullets and immediately, i.e., also within a minute started firing from their firearms. On the northern side of Bhangaberia Bridge about 20,000 people had gathered of which 10,000 were women. It was at that stage that Arun Gupta, Inspector-General declared on the microphone that assembly of persons on the northern side of the Bhangaberia Bridge is illegal. It is, however, stated that at stage no orders had been issued u/s 144 of the Criminal Procedure Code Act. The police personnel are stated to have used SLR and AK-47. The CPI(M) cadres who were working along with the police personnel also used firearms and chapars. According to the deponent of this affidavit the police had fired indiscriminately without any reason. People were agitated against the Chairman of HDA, District Administration and CPI(M). There was no attack from the crowd on the police, therefore, there was no justification for firing of the police to the crowd. The police authorities committed a breach of Regulation 153(i) of the Police Regulations, Bengal, 1943. There was no unlawful assembly in the area warranting action u/s 153(ii) of the Police Regulations, Bengal, 1943. There was no attempt to arrest anybody at any time. Therefore, no ground exist for invoking power under Regulation 153(ii) of the Police Regulations, Bengal, 1943. No warning was given by the police authorities under Regulations 154(a) of the Police Regulations, Bengal, 1943. There was also non-compliance of Regulations 154(b), (c) and (d) of the Police Regulations, Bengal, 1943. Regulations 155 and 156 were also not followed. As a result of the firing the following people died:
------------------------------------------------------------------------ Names Father/Husband Address G.P. No. ------------------------------------------------------------------------ 1. Joydeb Das Haradhan Sonachura G.P. No. 10 2. Rakhal Giri Pratap Do Do 3. Ratan Das Kanai Gangra Do 4. Pranab Mondal Pulin Do Do 5. Pralay Giri Sarbeswar Soudhkhali Do 6. Supria Jana (F) Sukumar Sonachura Do 7. Sk. Imdadul Islam Sk. Manirul Jadubarichak G.P. No. 9 8. Basanti Kar (F) Gorachand Kalicharanpur Do 9. Badal Mondal Lt. Gobardhan 7. No. Jalpai Do 10. Gobinda Das Bhanu chanran Do Do 11. Imdadul Khan Abduldaian Do Do 12. Uttam Kr. Pal Rabindranath Keshabpur G.P. No. 6 (Sambhu) 13. Panchanan Das Gunadhar Do Do 14. Not identified ------------------------------------------------------------------------12. 162 persons had been injured. Details of 80 such persons have been given in paragraph 43 of the affidavit. Thereafter the affidavit goes on to narrate the crimes against female population of the area. It is stated that on 14th of March in the evening following three women were raped which are as under:
List of Raped at Nandigram ------------------------------------------------------------------------ Name Father/husband Age Address ------------------------------------------------------------------------ Kajal Majhi Bikash Majhi 35 Kalicharanpur Gouri Pradhan Joydeb Pradhan 27 Gokulnagar Srabanti Das Satyendranath Gokulnagar Adhikari ------------------------------------------------------------------------13. It is stated that 27 persons out of which six are female and one child are still missing. The details of the 27 persons are missing are also given in the affidavit.
------------------------------------------------------------------------ Names Father/Husband Address G.P. No. ------------------------------------------------------------------------ 1. Subrata Patra Lalmohan Sonachura G.P. No. 10 2. Sahadeb Mali Mahendra Do Do 3. Amiya Bera Nilmani Do Do 4. Joydeb Jana Haradhan Do Do 5. Srimanta Manna Bhagyadhar Do Do 6. Kalobaran Sainanta Sukesh Do Do 7. IndrajitMaji Pranab Do Do 8. Manai Maity Shankar Do Do 9. Ganesh Maity Shankar Do Do 10. Ganga Das Shankar Do Do 11. Prabir Mondal Shankar Do Do 12. Baria Mondal Prabir Do Do 13. Rakhal Giri Pratap Do Do 14. Anjali Das(F) Mrityunjay Do Do 15. Kanaklata Das (F) Rabin Soudhkhali G.P. No. 9 16. Pralay Giri Naba Do Do 17. Purna Ch. Majhi - Kalicharanpur Do 18. Sunil Das - Do Do 19. Kalibala Patra Nishi Do Do 20. Swapna Patra (F) Bidhan Do Do 21. Kalpana Patra (F) Bibhuti Do Do 22. Rabindranath Das Bhanu 7. No. Jalpai Do 23. Subrata Samanta Pranab Do Do 24. Subrata Bijli Sudarshan Gokulnagar G.P. No. 6 (Chi.-4) 25. Sabitri Bijli (F) Do Do Do 26. Kabita Das (F) Nitai Do Do 27. Durgapada Maity Ramhari Roynagar Do ------------------------------------------------------------------------14. The raids conducted by the Central Bureau of Investigation (CBI) has led to recovery of arms and ammunitions from the Janani Brickfield and other documentary evidence from the office room of the brickfield. Number of documents including receipts of CPI(M), red flags of CPI(M), telephone diaries, personal diaries and six green colour helmets have also been recovered. 10 persons were arrested by the CBI, the local Sub-Inspector of Police started criminal case, being Khejuri Police Station Case No. 20/07 dated 17.03.2007 was registered against them u/s 25/27/35 of Arms Act and 120B of the Indian Penal Code. All the 10 persons are said to belong CPI(M).
15. Relying on these facts, elaborate submissions have been made by the learned Counsel for the petitioners Mr. Kalyan Bandopadhyay. He has submitted that the action of the police is contrary to the legal provisions. The police have acted contrary to the provisions of the Police Act, 1861 as amended. The action of the police is also contrary to the provisions contained in the Criminal Procedure Code as well as the provisions of the Police Regulations, Bengal, 1943. Learned Counsel submits that the police fired indiscriminately without any reason. The congregation or the assembly had not been declared to be illegal. No order was issued under Sections 144 and 145 of the Criminal Procedure Code. Poor and illiterate people had gathered together only to protect their home and hearth. They are not the members of an unlawful assembly. The order to shoot at the crowd has resulted in the killing of 10 innocent people. Therefore, the police had not only violated the fundamental rights of the victims but have committed a crime against humanity. In opening fire the police had also infringed the provisions of Regulations 153, 154, 155 and 156 of the Police Regulations, Bengal, 1943. As a result of the firing 162 persons were injured. Out of fear large numbers have left their homes and are still missing. The police, according to Mr. Bandopadhyay, has taken a partisan role, therefore, it cannot be said that the action of the police was either legal or justified.
16. He submits that the role of the politicians and the power brokers would have to be investigated. Violent did not suddenly erupt on 14th March. Admittedly, there had been unrest in the area since September, 2006. Deliberately the situation was permitted to deteriorate. That is the reason why the assistance of the Central Forces was not summoned. The local MP wanted to teach the villagers a lesson. He was always taking a position contrary to the official statements. He even contradicted the statement made by the Chief Minister, that no land would be acquired. According to the learned senior Counsel, the action of the authorities is indefensible.
17. According to Mr. Bandopadhyay, a comprehensive report on the basis of a complete investigation would be required. Question of compensation which the victims would be entitled to receive can also be considered if the firing is held to be unjustified.
18. It would, therefore, have to be seen as to whether the authorities have exceeded the power vested in the State under Article 162 of the Constitution of India. In support of this submission learned Counsel has relied on in the case of Ram Saran Vs. I.G. of Police, CRPF and Others, . It will also have to be seen as to whether the action of the police, even if it is beyond the procedure prescribed under the Criminal Procedure Code and under the West Bengal Police Regulations, 1943, would be protected under the umbrella of sovereign immunity. In support of this, learned Counsel has relied on in the case of N. Nagendra Rao and Co. Vs. State of Andhra Pradesh, .
19. Learned Senior Counsel then submitted that even is consent is necessary for making a reference of the investigation to the CBI it cannot now be said by the learned Advocate General that no consent is given, as the Chief Minister had welcomed the directions issued by this Court in the order dated 15th of March, 2007. This statement was made by the Chief Minister on the floor of the West Bengal Legislative Assembly. A statement in Parliament or in the Assembly according to the Rules of Parlimentary Practice (Rule 372 of the Parliament Practice and Rules 346 of the Assembly Practice) can only be made with the consent of the Speaker. Having made such a statement it cannot now be denied by the learned Advocate General.
20. Apart from this Mr. Bandopadhyay submits that absence of the consent by the State Government would not be a bar for the High Court to exercise the power under Article 226 of the Constitution of India. In support of his submissions the learned Counsel has relied on:
1. State of West Bengal and Others Vs. Sampat Lal and Others, ,
2. Central Bureau of Investigation Vs. State of Rajasthan and Another, ,
3. Gudalure M.J. Cherian and Others Vs. Union of India (UOI) and Others, ,
4. Mohammed Anis v. Union of India and Ors. reported in 1994 Supp.(1) SCC 145 (para 6),
5. State of Bihar and another Vs. Ranchi Zila Samta Party and another, .
21. Mr. Amjad Ah has reminded this Court of the proceedings which were held on 15th March, 2007. He made a reference to the observations of His Excellency, the Governor of West Bengal, under the news item “Governor Reacts”. Learned Counsel submitted that this kind of police firing cannot be accepted from the law enforcement agencies in a society governed by rule of law. It is, therefore, necessary to know the conditions which were prevailing at the relevant point of time. To know as the whether the action was justified, it is necessary to know who are the forces who have disrupted the peaceful life of these simple villagers who have always had harmonious relation. The villages are located at considerable distances from the urban center of Nandigram. These villages are administered by Panchayat bodies. Most of the Panchayat bodies in the area are under the control of CPI(M). The entire area is inhibited by people living below the poverty line, depending upon the produce of the agricultural land which produces multiple crops such as paddy, potato, pulse, jute, betel leaf etc. Considerable sections of the population of the area are fishermen, landless farmers and firm workers who live on their meagre income for agriculture and fishing. The apprehensions of the people of the area that the land was to be acquired were triggered by “aerial survey” conducted by the authorities. The Chief Minister of the State of West Bengal had also made a number of public proclamations that a vast area in and around Nandigram, adjacent to the port city of Haldia, would be acquired for setting up a Chemical Hub in and around the area. By making reference to the affidavit filed by one Kazi Sofiuddin Ahmed, Advocate, dated 26th March, 2007, Mr. Amzad Ali has submitted that the people of the area were kept in the dark about which land was to be acquired. The population was, therefore, suspicious and apprehensive. There was no tangible land map.
22. He made a reference to a letter dated 12th September, 2006 written by the Chief Executive Officer, Haldia Development Authority (HDA) to the Director of Industries, Government of West Bengal on the subject of “a revised proposal for approval of the Special Economic Zone at Haldia”. This letter had been written with reference to earlier office letter dated 6U’ March, 2006. Through this letter the revised site plan for the proposed SEZ had been submitted. Mr. Ali, therefore, imposes the question that since that is a revised proposal then what was the details of the earlier proposal. The entire population has been kept in the dark with regard to this. Learned Counsel on the basis of the list of Mouzas covered for special economic zone submitted along with the aforesaid letter, points out that a total of 38,873.37 crores of land was said to be taken over covering 101 Mouzas. He further submitted that HDA had been set up only to give a colour of legality to the illegal activities of the authorities. The notices for acquisition had been issued by HDA without having any legal power or jurisdiction to do so. Since the entire process was shrowded in mystery, the people of the affected area got themselves organized out of fear and apprehension of being evicted from their hearth and home, lands and religious places of worships, centers of education. The entire population was living against the threat of illegal eviction from their land. The area is virtually littered with educational institutions (more than 17), Muslim burial grounds and Hindu Mandirs. They apprehended that the multicultural way of life was about to be destroyed. Conversely the rank and file including the leadership of the CPI(M) also got themselves organised to frustrate such popular resistance. They started organizing public meetings in support of the proposed project. Thereafter, there were meetings and counter-meetings, processions, and counter-processions organised by pro-land acquisition and anti-land acquisition groups. These meetings and rallies had become a daily feature since September, 2006 culminating into wholly unjustified police firing on 14th March, 2007. Hardcore supporters of CPI(M) sought to exhibit their power and authority by open threat of life and property, security and sanctity of the female inmates, safety of children, whose who were dare to oppose land acquisition. Most of the CPI(M) supporters came from Khejuri. It was a common perception in the area at that time that when the rallies, processions and meetings held by CPI(M) rank and file, police force was being utilized private army,’ as commanded by the local M.P. and other CPI(M) leaders. It was also general perception that police took a partial attitude in favour of the rank and file of the CPI(M) and supporters of the land acquisition and against the protesters who are about to be rendered homeless. False cases started against the villagers at the instance of the police personnel. These cases were registered with the oblique motive of providing a cover of legality for the illegal activities of the police, in conducting unjust raids into the houses and the properties of the innocent villagers. Learned Counsel submitted that since the law and order situation was so bad that the authorities could have restored to take proceedings under the various provisions of the Criminal Procedure Code resorting to police firing was not the answer. Even on the date the firing took pace no order has been passed under any of the provisions of the Indian Penal Code/Criminal Procedure Code or the Police Regulations, Bengal, 1943. Rather false cases had been registered against the villagers.
23. Learned Counsel has also submitted that even the Governor clearly stated in the newspaper report that he had advised the Government over the last two days. This advice of the Governor was also not heeded and no explanation has been given as to what was the response of the respondents to the advice. The fact that independent investigation by CBI is required, justified even on the basis of the statement made by the Chief Minister on the Assembly Floor on 15th of March, 2007.
24. Mr. Kashi Kanta Moitra has also appeared for Bar Association. He submitted that in the order dated 15th March, 2007, this Court has already recorded a prima facie view that (a) there was a emergent situation, (b) that there was likely to be loss of evidence and (c) that the Central Bureau of Investigation (CBI) should inquire into the whole matter. He further pointed out that the evidence collected has been sealed by this Court by order dated 26th March, 2007. The State has violated Article 21 of the Constitution. People who were attacked are not terrorists. They are very simple farmers who are living below the poverty line. Unless the bitter truth is unearthed, the rule of law would remain only on paper. The State has also taken no serious objection to the direction given by this Court on 15th March, 2007 during all this period. Since then the State has not filed any appeal in the Supreme Court nor filed any application for the modification of the directions. In fact, the Chief Minister accepted the CBI inquiry. The statement of accepting the inquiry was made in the Assembly itself. Therefore, no objection to be taken under the provisions of the Delhi Police Act that the State Government has not given consent to the continuation of the CBI inquiry. Learned senior Counsel submitted that underlying the oppressive firing is the fundamental question which has been asked since the dawn of civilization, viz.,: will man control money or will money control man? Learned senior Counsel submitted that in Nandigram Article 21 is still being violated. There is order but no law. Therefore, CBI inquiry needs to be continued. Mr. Joymalya Bagchi has submitted that the inquiry is necessary to establish as to whether the police firing was justified. It is only if the police firing is found to be unjustified that the victims would be entitled to get compensation. In support of this contention learned Counsel has relied on the following judgments:
1. Peoples’ Union for Democratic Rights Vs. State of Bihar and Others,
2. R.S. Sodhi Vs. State of U.P. and others,
3. Paramjit Kaur Vs. State of Punjab and Others,
25. In view of the aforesaid decision, the learned Counsel submits that Section 6 of the Delhi Police Act would not be a bar to direct the CBI to conduct the enquiry.
26. Mr. Saktinath Mukherjee, Senior Advocate, represents the Calcutta Bar Association and the Incorporated Law Society in W. P. No. 8596(W) of 2007. He has added another dimension to the situation that prevailed in the area. At the outset Mr. Mukherjee has pointed out that the petition has been filed by the Bar Association not with any ulterior motive to espouse the cause of any particular political party or group of political activists. The petitioner are concerned only with the breach of fundamental rights of the people of Nandigram, by the police inaction in the area from January, 2007 onwards culminating into police firing on 14th March, 2007. He submits that the episode on the 14th of March, 2007 did not just happen. It was contrived.
27. Learned Counsel made a reference to a sketch map of the Nandigram area. He emphasised that most of the supporters of CPI(M) are situated in Khejuri. Most of the violence took place in the Nandigram area. Nothing happened in Khejuri. There is a natural division between the Kehjuri and Nandigram formed by Talpati Khal. There was peace in the entire area till 14th March, 2007 when something happened. On 15th of March, this Court passed an interim order giving a number of directions. The Bar Association formed a team consisting of 25 senior Advocates and lady Advocates. They interacted with the local population and prepared a report which has been submitted in this Court. The victims also came to the Governor seeking justice. This petition is based on the reports submitted by the Advocates and is not a newspaper report based petition. There was wide coverage of the violence and police firing at Nandigram in the National newspaper and electronic media. At least one newspaper namely, ‘Bartaman’ published from Calcutta on 14th March, 2007 reported that Nandigram had been surrounded by police force and there is purportedly designed attempt to secure forcible entry into Nandigram by armed police force of the State acting in concert with the armed activists of the major political party now in power in West Bengal. On 13th March, 2007 even the Home Secretary made a Press statement to the following effect:
We have taken decision that the police should enter Sonachura and other sensitive villages in Nandigram. This might stop clashes and restore villagers’ confidence in the administration and police.
28. The Home Secretary is reported to have given instructions to the District administration to gain control Nandigram area by any means allegedly for restoration of law and order.
29. The Bar Association adopted a resolution on 22.03.2007 that Mr. S.P. Roy Chowdhury, senior Advocate, as convenor, would form a Sub-Committee to provide and/or to aid in providing legal, moral and financial aids to the victims of Nandigram affected by the incident took place on 14th March, 2007. The Sub-Committee in its meeting held on 2nd April, 2007 adopted the following resolutions:
In the above facts and circumstances a Sub-Committee was formed under the supervision of Mr. S.P. Roy Chowdhury. Sr. Advocate and a meeting was convened and held on 02.04.2007. In the said meeting the Nandigram issue was considered in all its aspects and a resolution was adopted in the said meeting, inter alia:
(i) to send a team of 26 members with lady Advocates to visit the affected area of Nandigram and to take stock of the situation and to collect all the informations for appraisal the members of the Bar and provide legal aid, financial aid, moral aid to the affected people of Nandigram;
(b) to talk to the victims and their family members to ascertain their feeling about such incidents;
(c) to ascertain the needs of the people of Nandigram and cause of resentment amongst the people against. Administration for which there was firing by the Administration and its associates.
30. It was this committee which had visited the affected areas and submitted a report on the basis of their own enquiries and observations. The Two lady Advocates personally interacted with ladies of the affected villages and collected information to the extent possible from the local women who claimed to have been raped and/or molested on 14th March, 2007 at their villages. On the basis of the pleadings contained in the writ petition Mr. Mukherjee submits that there is a bridge known as ‘Tekhali bridge’ which leads to “Tekhali bazar’. The villages on the Nandigram side have to cross this bridge to go to Tekhali bazaar. This bridge has to be crossed by the villagers to get their necessities like kerosene, wheat, sugar and medicines. It is also the only means of communication for transporting the agricultural produce and the fish. There is also a bridge running between Khejuri and Bhanabera. Both these bridges have been closed on imposing an economic blocked on the villagers in the Nandigram area. This has been done to starve the people of Nandigram into submission and to compel them leave their hearth and home. The two bridges are so important and integral to the life of residence of Nandigarm that their closure would reduce Nandigram area to mere animal existence. The children of the people residing in the villages on the Nandigram side have to go to Khejuri to attend the High School in the locality. They are, however, not able to reach the schools as the villagers are being forced to remain confined in villages under threat of physical violence. The very large numbers of people of Nandigram who are reportedly opposed to the proposed acquisition have formed an organization in Nandigram area known as ‘Bhumi Ucched Pratirodh Committee’ (hereinafter referred to as BUPC). This is a non-political organization. To crush all resistance some of the leading activists of the major political party in power in the State who are, however, been a stronghold over the adjacent Khejuri and Tekhali bazaar area conspired with the local administration and the police force as well as armed antisocials to launch attack on the people living in the Nandigram area. It is a general perception among the people of Nandigram area that the police and the other people armed with guns opened fire without any justification upon unarmed people and their family members including women and children. The exact number of firings is not ascertainable as firings was resorted on a large scale. Some of the bullets recovered from the site do not belong to police rifles.
31. The learned senior Counsel submits that there was total break down of law and order in the Nandigram area was inaccessible to the local police. Violent crime was rampant in the area. Police was unable to investigate any case. Still it was never thought necessary or proper by the local or State authorities to seek the assistance of the Central Forces. It was pointed out that a large contingents of Central Forces were posted in a number of conveniently nearby localities. The local people, according to the learned Counsel, have openly stated that the local M.P., Laxman Seth, was not interested in restoration of peace in the area. He wanted to teach the villagers a lesson, for daring to oppose his scheme establishing a chemical hub in the area.
32. It was submitted there were no disturbances in the area. Therefore, there would be justification for the general perception of the public that the police had contrived to create a situation on 14th March, 2007. Mr. Mukherjee emphasised that 14 innocent persons lost their lives in an unjustified police firing.
33. Mr. Mukherjee submitted that the police firing was wholly unjustified. There has been a clear breach of Article 21 of the Constitution of India. Learned Counsel has relied on:
1 Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, ,
2. Kartar Singh v. State of Punjab with other case reported in ,
3. Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, ,
4. E.P. Royappa Vs. State of Tamil Nadu and Another, .
On the basis of the aforesaid judgments the learned senior Counsel contends that the procedure established by law would mean that the procedure itself must be a law as defined under Article 13 of the Constitution of India.
34. According to Mr. Mukherjee, the action taken by the police in Nandigram on 14th March 2007 does not fall within the ambit of procedure prescribed by law. According to the learned senior Counsel the 1943 Police Regulations do not fall within the definition of law under Article 13 of the Constitution of India. Learned Counsel also submits that in fact the indiscriminate police firing cannot even be supported under Sections 129, 130, 131 & 132 of the Criminal Procedure Code.
35. According to the learned senior Counsel in a Public Interest Litigation normal procedural limitations do not apply. The Court is required to examine the grievance put forward, even in a letter “pro bono publico” i.e., for the benefit of the general public. For passing effective orders the Court is required to collect facts. Everybody is required to assist and co-operate in the proceedings in the Court. The underline idea of Public Interest Litigation is to ensure that basic human rights are not violated. In these proceedings the function of the Court is not adjudicatory in nature. In support of the submissions, the learned Counsel has relied on various judgments of the Supreme Court which is as under:
1. People’s Union for Democratic Rights and Others Vs. Union of India (UOI) and Others, .
2. S.P. Gupta Vs. President of India and Others, .
3. Bandhua Mukti Morcha Vs. Union of India (UOI) and Others, ,
4. Khatri and Others Vs. State of Bihar and Others,
36. The High Court in a Public Interest Litigation will have the same power as the Supreme Court under Article 142 of the Constitution of India. In cases involving service disputes the Supreme Court has indicated that High Court can pass necessary orders to do substantial justice. In support of his submission, learned senior Counsel has relied on the following judgments:
1. B.C. Chaturvedi Vs. Union of India and others, ,
2. U.P. State Road Transport Corporation and Others Vs. Mahesh Kumar Mishra and Others, ,
3. Badrinath Vs. Government of Tamil Nadu and Others, .
37. Mr. Mukherjee then submits that the provisions of Delhi Police Act, 1946 would not be a bar for the High Court to issue the necessary instructions in a Public Interest Litigation. The High Court can authorize a special officer/ team of persons to collect material in a Public Interest Litigation, to enable the Court to issue the necessary directions. Even otherwise the question has been answered by the Single Bench of the Calcutta High Court in the case of A.K. Sirkar v. State of West Bengal and Anr. with other cases, reported in 1979(2) CLJ 150 (para 15). The jurisdiction under Sections 5 and 6 of the Delhi Police Act has been extended to the whole of India by notifications dated 6.11.1956 and 21.04.1960. Learned senior Counsel, however, submits that even without the notifications CBI inquiry can be ordered. In a Public Interest Litigation concerning violation of fundamental rights under Article 21 of the Constitution of India, this Court can take into consideration the provisions of the International Conventions. In support of this proposition learned Counsel has relied on judgments of the Supreme Court in the case of Vishaka and others Vs. State of Rajasthan and Others, . The fairness or otherwise of the police action on 14th of March, 2007 can be examined on the touchstone of basic principles on use of firearms as contained in the Havana Convention on Basic Principles on the use of force and Firearms is made to paragraphs 1, 2, 5 and 23 of the Convention dated 07.09.1990. In support of this submission learned Counsel has relied upon a judgment of the Supreme Court in the case of People’s Union of Civil Liberties (PUCL) Vs. Union of India (UOI) and Another, .
38. Right to have an independent investigation is a part of Article 21. This cannot be scuttled by technicalities. In support of his submission learned Counsel has relied on the following judgments:
1. State of West Bengal and Others Vs. Sampat Lal and Others, ,
2. Fomento Resorts and Hotels Ltd. Vs. Gustavo Ranato Da Cruz Pinto and Others, ,
3. Kashmeri Devi v. Delhi Administration and Anr. reported in AIR 1988 SC 1223 (paras 6 & 7).
39. In this case the officers have admitted that there was lack of faith at the time when the police action was initiated. The action was initiated to restore confidence among the general public. The circumstances in the present case are such that an independent inquiry would have to be conducted. In support of his submission learned senior Counsel has relied on the following judgments:
1. Gudalure M.J. Cherian and Others Vs. Union of India (UOI) and Others,
2. Mohammed Anis v. Union of India and Ors. reported in 1994 Supp. (1) SCC 145;:
3. State of Bihar and another Vs. Ranchi Zila Samta Party and another, ;
4. Central Bureau of Investigation Vs. State of Rajasthan and Another, ;
5. Goodrieke Group Ltd. and Anr. v. Agricultural Income Tax Officer, Calcutta Range-1 and Anr. reported in 2001(2) CHN 104 (para 8).
40. In conclusion of his submission learned senior Counsel has submitted that the Chief Minister has already welcomed the investigation conducted by the CBI. The direction given on 14th March, 2007 cannot now be put in a deep freeze on the ground that the consent has not been given by the State Government. A preliminary inquiry has already been conducted by the CBI. The last paragraph of the preliminary report clearly indicates that further inquiry is required. The latest authority in the string of judgments directing CBI inquiry is the case of Munshi Singh Gautam (D) and Others Vs. State of M.P., . Mr. Mukherjee lastly submitted that the submissions made by he learned Counsel are based on the reports submitted by the Advisory Committee. The glaring illegalities and atrocities that have pointed out need to be probed to see as to whether police action was justified.
41. Giving the version of the State of the relevant facts the learned Advocate General submitted that there was continuous agitation over acquisition of land from 3rd January, 2007 till 14th March, 2007. In fact, there was unease in Nandigram area since November, 2006. Even the peace meetings that were held were fruitless. The police was incapacitated in the area. All rights, fundamental and other, were lost by those who were evicted from their houses. According to the learned Advocate General this is one of a kind case where the action of the police cannot be and should not be judged on the touchstone of the normal standards of restraint which the police personnel are to follow in maintaining law and order in normal circumstances. He submits that the agitations of the people of Nandigram were against the proposal to acquire lands in the area. In fact, there was no final decision on this issue. An informal notice was circulated by HDA to avoid the spread of any disinformation. This notice was put at Block and Gram Panchayat offices indicating the likely location of the project. However, several political parties organized a number of meetings to oppose any land acquisition. Bhumi Uchhed Pratirodh Committee was set up as narrated by the petitioners from 3rd January, 2007 till 14th March, 2007. An area of 65 kilometers in and around Nandigram had become literally beyond civilization. Law and order was non-existent. The area was inaccessible. Roads had been dug up. He individual criminal cases had been registered. It was almost as if no Government existence. Therefore there was no alternative but to sad in the police to restore law and order.
42. Coming to the incident on 14th March, 2007 it is pleaded as follows:
i) Police movement started in the morning of 14th March, 2007. IG, Western Zone, Arun Kumar Gupta, IPS, was in charge of the entire police operation. The arrangements were that one team under SP, Purba Midnapore and assisted by the Additional S.P., Haldia and DC, 9th Battalion along with about 250 constables and a suitable number of officers were to move from Bhangaberia bridge to Sonachura, set up camp at Sonachura and later part of the team was to move to Soudhkhali and camp there. The second party under the charge of Additional SP, WMDP and Additional S.P., Bidhannagar were to move with about 200 constables and a suitable number of officers from Nanadigram to Maheshpur. They were to start patrolling from Nandigram in Tekhali. The third team, led by Additional S.P., Tamluk and Additional S.P. (Rural) Howrah were to move from Tekhali outpost of Adhikaripara and camp there. In addition, forces were stand by at Tekhali outpost, Bhangaberia bridge, Nanadigram P.S. Khejuri P.S. and Contai. All the parties were to be composite parties armed with lathi/dhal, gas/rubber bullets and arms. They were assisted by suitable number of women constables. I.G., Western Zone was supposed to remain on stand by at Bhangaberia while DIG, Midnapore Range, N. Ramesh Babu, IPS, was to remain on stand by at Tekhali outpost. However, after the operation started, I.G., Western Zone had to move along with the first team to Bhangaberia bridge and Sonachura since the situation had turned very critical.
ii) The first team reached the Bhangaberia bridge at about 9.30 a.m. where they were met by an unruly mob of about 4500/5000 people including a large number of women and some children. They were assembled on the Nanadigram side of the bridge and were determined to resist the police party. The crowd was seen to be armed with lathis, sword, sticks, spearheads bhojali etc. Some persons in the back of the assembly seen armed with firearms. The police made repeated announcements about the purpose of the police movement but the crowd was in no mood to respond. The Executive Magistrate present Nitish Kumar Das, WBCS(Ex) and B.D.O., Khejuri-I Block declared the assembly to be unlawful. At this stage, heavy brick-batting started and the police had to resort to firing teargas shells. However, as the wind direction was adverse, the teargas did not have much effect. The police then firing rubber bullets even this did not produce the desire results. The mob actually started throwing bombs at the police party. The Executive Magistrate then directed the armed force to use “minimum adequate force to disperse the armed unlawful assembly and arrest if necessary.” As the stone pelting and bombs throwing at the police party continuing, the police resorted to opening fire. In the report submitted that 20 rounds were fired from S.L.R. weapons of the police party. 30 police personnel sustained injuries and had to be shifted to Janka PHC under Khejuri P.S. 25 injured persons were found with various injuries and they were also shifted to Janka PHC for treatment. The police was able to arrest 14 accused persons after a chase. On a search in the area the police recovered guns. During further search the police found 15 improvised firearms of different cartridges, 11 rounds of five ammunition, 7 fired cartridges, 12 live bombs and remnants of some exploded bombs. Over this incident, Nandigram P.S. Case No. 30/07 dated 14.03.2007 u/s 147/148/149/341/186/353/332/333/506/307/120B of Indian Penal Code, 9(b) of IE Act, 25/27 Arms Act and 3(2) PDPP Act has been registered on the complaint of Amit Kumar Hati, Sub-Inspector of Police.
iii) After the police firing, the crowd withdrew from the sence, leaving behind a few of the injured persons. The first police party therefore, to move from Bhangaberia to Sonachura without any further resistance. They found Sonachura to be almost deserted, except for a few old people, women and children. They set up camp at Sonachura High School.
iv) The second team did not encounter any resistance anywhere. They also proceeded to Sonachura to link up with the first team.
v) The third team encountered a violent mob of 600/700 people. There was no Magistrate accompanying this police party. Here again, the police party was obstructed in a similar manner as at Nandigram. The police, therefore, resorted to open fire under extreme circumstances. In this incidence a number of police personnel including Shri Debasis Boral, ISP was injured by stone-throwing. It has been reported that 17 rounds were fired at Bakulnagar. Case No. 40/70 dated 16.03.2007 has been registered on 16.03.2007 on the complaint of S.I. Sekhar Roy.
vi) In its effort to restore law and order in the affected areas Sonachura and Adhikaripara, the police had already recovered improvised firearms, several fired cartridges, 18 live bombs and remnants of some exploded bombs from the sites around the places of firing of after search. 14 persons were arrested after pursuit. Subsequently, during patrolling, another group of 10 persons were arrested. A large-scale of firearms were recovered from them as follows:
Four .315 rifles, one country-made firearms, three shot-guns, two country-made pistols, one country-made revolver, one automatic pistol, one imported revolver, one 12 gauge shot-gun, one empty magazine, 238 pieces of empty cartridge cases, 47 pieces of live, .12 bore cartridges, 27 pieces of .12 bore cartridges and one empty case, 44 pieces of live cartridges of different types, 34 pieces of live cartridges of different types, 267 pieces of live 8 mm/315 cartridges and 24 pieces live .380 cartridges.
This according to the learned Advocate General is a gist of occurrence.
43. Learned Advocate General has raised two very important preliminary objections:
Objection No. 1: According to the learned Advocate General, in the facts and circumstances of this case, Public Interest Litigation would not be maintainable. He submits that Public Interest Litigation can be entertained by the Court for limited purposes. The jurisdiction is not unlimited in its ambit. The well defined limits of judicial review have not been expanded by the development of the remedy known as Public Interest Litigation. According to the learned Advocate General all necessary materials have been disclosed by the State. The petitioners have done very little to assist the Court. They have hardly provided any particulars which have not been disclosed by the State. In fact, the statements made in the affidavit filed by the State Government have not been controverted by the petitioner. All affidavits have been filed only on information given by members of Bhumi Ucched Pratirodh Committee. Affidavit of Shri A. K. Mukhopadhyay has, in fact, been confirmed on the basis of newspaper reports or the reports of the electronic media. These affidavits, therefore, cannot be relied upon to form an opinion that CBI enquiry is required. The competent officer had given the order to open fire. It is for the officer at the spot to decide the action required to be taken disperse an unlawful assembly. So long as the action of the police in performance of its duty, even if some officer or policemen exceeds his powers, would not make the order to open fire illegal or unjustified.
In support of his submission learned Advocate General relied on a judgment of the Delhi High Court in the case of Pancham Lal Vs. Dadan Singh, This judgment, according to the learned Advocate General, has been approved by the Supreme Court in the case of Akhilesh Prasad v. Union Territory of Mizoram, AIR 1981 SC 806, 1981 Cri LJ 407 . Learned Advocate General also relied on the cases of:
1. Empress v. Tucker, Norman & Thompson reported in Indian Decisions (7) Bombay 28 (para 50).
2. D.N. Srivastava, IPS v. Parthajoy Das and Ors. reported in 1983 Crimes 248 (paras 39, 40, 41, 52, 54 & 55).
Objection No. 2: Even otherwise the direction sought by the petitioner for reference of the matter to CBI cannot be issued by the High Court in the facts and circumstances of this case, Learned Advocate General submits that that High Court would have no power/jurisdiction to refer the matter to the CBI for investigation in the absence of the consent given by the State Government as required u/s 6 of the Delhi Special Establishment Act, 1946. In the present case, the consent has neither been asked for nor given. According to the learned Advocate General, no justifiable issue has been raised by the petitioners with regard to the firing by the police; therefore, the CBI would not have the power or jurisdiction to investigate.
Even otherwise powers and jurisdiction of the Special Police Establishment can only be extended to areas other than Delhi for the investigation of any offences or classes of offences specified u/s 3 of the Act. No such notification has been issued in this case. The State police have the exclusive power to investigate the crimes committed within the State. Central Bureau of Investigation cannot be permitted to interfere in the exercise of this power by the competent State authority. To get over this difficulty it has been provided u/s 2, Sub-section (3) of the Delhi Police Act that any member of the Delhi Police service above the rank of Sub-Inspector shall be deemed to be an Officer-in-Charge of the Police Station in the area in which the investigation is to be conducted. Even then the CBI Inspector can only investigate into cognizable offences. u/s 154 of Criminal Procedure Code, it is the duty of the local police to investigate into cognizable offences. CBI is not authorised to conduct investigation into cases. In order to illustrate the distinction between the case and offence, learned Advocate General has relied on:
1. P.V. Vijayaraghavan and Others Vs. C.B.I. and Another, ;
2. Gajraj Singh etc. Vs. The State Transport Appellate Tribunal and others etc., .
44. According to the learned Advocate General, the limits of the investigation have been set out in the case of H.N. Rishbud and Inder Singh Vs. The State of Delhi, . The ration of this case has been reiterated in the case of Mobarik Ali Ahmed Vs. The State of Bombay, . In the present case no cognizable offences has been committed by the police personnel who fired at the crowd. These police personnel were simply obeying the orders given by their superiors. Therefore, they would be immune from any criminal prosecution. In support of his contention learned Advocate General relied on a decision in the case of State of West Bengal Vs. Shew Mangal Singh and others, .
45. Therefore, the investigation can only be whether the officer has exceeded the power vested in him under the Criminal Procedure Code or the West Bengal Police Regulations. Even for this purpose a provision is made under Regulation 157 for a full executive enquiry to ascertain whether the firing was justified and whether the Regulations were obeyed. The enquiry is to be held by the highest Executive Officer within the District. Such an enquiry has already been held and it has been found that there was no transgression of any of the powers vested in the competent authority, Learned Advocate General further argued that the High Court would have no power under Article 226 to direct the CBI enquiry in the absence of consent given by the State Government as required u/s 6 of the Delhi Special Establishment Act, 1946. Undoubtedly, this power may be exercised by the Supreme Court under Article 142 of the Constitution but no such power exists in the High Court under Article 226. In support of this conclusion, learned Advocate General submits that under the Government of India Act, 1943 by virtue of Section 204 [sub-section (2)] the Federal Court could only give declaration of law. It could not give any other directions. Therefore, in order to enable the orders passed by the Supreme Court to be executed, Article 142 was inserted in the Constitution of India. In support of this submissions learned Advocate General relies on:
1. Delhi Judicial Service Association, Delhi Judicial Service Association, Tis Hazari Court, Delhi Vs. State of Gujarat and others, .
46. In this case it has been held that the High Court under Article 226 cannot give any directions against the provisions of statute. But over under Article 142 is of a different kind and different level. He also relied on the judgment of the Supreme Court in case of Union Carbide Corporation, etc., etc. Vs. Union of India, etc. etc., , where it is held that “power under Article 142 is at a entirely different level and of a different quality”.
47. Learned Advocate General then submitted that the Delhi Police Act is based on a public policy and that policy needs to be respected. Therefore, the powers, of the Special Police Establishment ought not to be extended lightly. Learned Advocate General submits that initially CBI traces its origin to the Special Police Establishment (SPE) which was set in 1941 by the Government of India. The functions of the SPE then were to investigate cases of bribery and corruption in transactions with the War & Supply Department of India during World War II. Even after the end of the War, the need for a Central Government agency to investigate cases of bribery and corruption by Central Government employees was felt. The Delhi Special Police Establishment Act was therefore brought into force in 1946. The CBFs power to investigate cases is derived from this Act. He reiterates that the powers to investigate under the Delhi Special Police Establishment Act, 1946 are limited to the offences which are notified u/s 3 of the Act. Therefore, the High Court will have no jurisdiction under Article 226 to direct investigation by the CBI into any transgression of any executive powers by the officers who would have given the order to open fire. With regard to the policy underlying the enactment of the Delhi Special Police Establishment Act, learned Advocate General relies on a judgment in the case of Ajay Kumar Singh and Others Vs. State of Bihar and Others, . Elaborating his submissions the learned Advocate General submits further that even the powers of the Supreme Court under Article 142 are complementary to those conferred on the Courts by different statutes. This power does not vest in the High Court under Article 226. On the distinction of the nature of the power of the Supreme Court under Article 142 and the power of the High Court under Article 226 learned Advocate General relies on the judgment in the cases of:
1. Sanchalakshri and Another Vs. Vijayakumar Raghuvirprasad Mehta and Another, ;
2. AIR 2000 SC 3638 .
48. On the basis of these judgments learned Advocate General submits that High Court has no power akin to the power of the Supreme Court under Article 142. In conclusion the learned Advocate General submits that in the present case seeking consent of the State Government is not relevant. The controversy involved in the Nandigram episode would not fall within the category of offences which could be investigated by the CBI. Therefore, the consent would neither be asked for nor given.
49. Learned Advocate General submitted that, infact, the whole controversy as to whether the consent of the State Government is required before the High Court can refer the matter to the CBI is pending consideration before the Supreme Court. The learned Advocate General has made a reference to the direction issued by the Supreme Court on 8th November, 2006 in Civil Appeal Nos. 6249-6250 of 2001. Learned Advocate General relies on the following observations:
In our opinion, the question of law Involved is of great public importance and frequently coming before the Courts and, therefore, it is necessary that it is settled by a larger Bench. Thus, the question “Whether the Court can order the CBI established under the Delhi Special Police Establishment Act, 1946 to investigate a cognizable offence which is said to have taken place within the territory of a State without the consent of that State Government”, is referred to a larger Bench. We, therefore, direct that the papers may be placed before the learned Chief Justice of India for passing appropriate orders.
50. In view of these observations learned Advocate General submits that since the whole question with regard to consent has been referred to a larger Bench by the Supreme Court, it would not be appropriate for this Court to issue any directions for the CBI to continue with the enquiry ordered by this Court on 15th March, 2007.
51. The learned Advocate General further submits that the action of the police was fully justified as all necessary precautions had been taken before the police was permitted to enter the disturbed area of Nandigram. The validity of the Police Rules cannot be challenged as the Regulations would be protected by Article 13 of the Constitution of India. It is true that very often the assistance of BSF and CRPF is sought by the States to help the State administration to stabilise a potentially volatile situation. However, whether or not the assistance of the Central Forces was required in Nandigram was a decision which had to be taken by the administration. Nothing adverse can be inferred merely because the State did not call for Central assistance of the Central Forces in stabilising the situation in Nandigram. He reiterated that it is the duty of the State Government to maintain law and order. For performance of such duty the State would be entitled to use reasonable force. However, the law under which the action is taken must conform with the provisions, of Articles 14 and 21 of the Constitution of India. According to the learned Advocate General, all actions of the State are strictly in conformity with the Law and the Constitution of India.
52. Learned Advocate General has submitted that there is a distinction between the concept of “law and order’ and “public order”. He has submitted that in cases of “public order” the State administration would be entitled to invoke the powers which may not be permissible to be invoked in the case of a simple “law and order” situation. Here the administration was faced with a very unique situation. Therefore, action was taken as permissible under the provisions of the Constitution of India, Criminal Procedure Act, 1973; The Police Act, 1861 and the West Bengal Police Rules, 1943. In support of these submissions learned Counsel relied on the judgments of the Supreme Court in the case of:
1. Romesh Thappar Vs. The State of Madras, .
2. The Superintendent, Central Prison, Fatehgarh Vs. Dr. Ram Manohar Lohia, ;
3. Kanu Biswas Vs. State of West Bengal, ; and
4. Niharendu Butt Majumdar v. Emperor reported in AIR (29) 1942 FC 22.
53. Learned Advocate General submitted that in order to maintain public order, the State can use the sovereign police power subject to the provisions contained in Articles 14 and 21 of the Constitution of India. Thereafter, he submits that there is no defined level of force that can be used to maintain law and order. It would even include the power to kill in order to control an unlawful assembly which is liable to resort to violence. It is permissible to open fire to control the crowd. In the present case, the mob had prevented the police from performing its duties. The provisions of Chapter 10 of the Criminal Procedure Code would fall within the definition of law and given in Article 13 of the Constitution of India. Furthermore, Criminal Procedure Code would also fall within Article 21 of the Constitution, having been enacted by Parliament. This chapter deals with maintenance of public order and tranquillity. Section (a) deals with unlawful assemblies. Section 129 of Cr. PC enables empowers any Executive Magistrate or O.I.C. of a Police Station or, in the absence of such O.I.C, any police officer, not below the rank of a Sub-Inspector, may command any unlawful assembly, or any assembly of five or more persons likely to cause a disturbance of the public peace, to disperse; and it shall thereupon be the duty of the members of such assembly to disperse accordingly.
54. If, upon being so commanded, any such assembly does not disperse, or if, without being so commanded, it conducts itself in such a manner as to show a determination not to disperse; any Executive Magistrate or police officer noted above may proceed to such disperse by assembly of it forces. According to the learned Advocate General Section 130 would tend to show that firing to disperse an unlawful assembly unwilling to disperse is permissible. Section 130 provides that if such an assembly cannot otherwise be dispersed, the Executive Magistrate of the rank who is present may cause by the armed forces. The use of armed forces would indicate that firing is permissible. In support of this submission learned Advocate General relied on the judgment in the case of State of Maharashtra v. Captain Buddhikota Subha Rao reported in 1989 Supp (2) SCC 605 (para-7). In this case the power of the police to open fire has been held to be valid by the Supreme Court.
55. In fact, according to the learned Advocate General that the force has been defined u/s 349 of Indian Penal Code. Such a wide definition according to learned Advocate General would cover gunfire. Learned Advocate General, thereafter, submits that Sections 129 and 130 of Cr. PC gives sufficient guidelines for the use of gunfire. Further guidance is provided under the Police Act, 1861. The Police Act of 1861 was passed to reorganise the police and to make it a more efficient instrument for the prevention and detection of crime. The provisions of this Act have been supplemented by the Police Regulations, Bengal, 1943, which have been framed by virtue of the powers conferred on the Inspector-General u/s 12 of the 1861 Act. The 1861 Act would fall within the definition of existing laws under Articles 13 and 372 of the Constitution of India. Article 13 provides that all laws in force in India immediately before the commencement of the Constitution insofar as they are inconsistent with the provision of Part-Ill of the Constitution of India shall to the extent of such inconsistency be void. Article 13(2) provides that the State shall not make any law which takes away or abridges the rights conferred by Part-III. Article 13(3a) defines “law” to include any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law. In Article 13(3)(b) it is provided that laws in force would include the laws passed or made by a legislature or other competent authority, which had not previously repealed. Article 372 provides that all laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority. Learned Advocate General submits on the basis of these provisions that The Police Act, 1861 and The Police Regulations, Bengal, 1943 would be laws in force. In fact, the Police Act, 1861 has been ratified in 1951. These laws cannot be held to be invalid simply because they permit the use of gunfire. In such circumstances if necessary the Court would read down the offending clause in the regulations, to uphold its validity.
56. In support of these submissions learned Advocate General relied on the following judgments:
1. The Edward Mills Co. Ltd., Beawar and Others Vs. The State of Ajmer and Another, ;
2. Gobind Vs. State of Madhya Pradesh and Another, ;
3. Ratnakar Vishwanath Joshi and Others Vs. Life Insurance Corporation and Others, ;
57. The learned Advocate General, thereafter, submitted that even on the touchstone of Article 21 of the Constitution of India it cannot be argued that the Police Act or the 1943 Regulations are not just fair and reasonable. According to the learned Advocate General the Police Regulations are within its limits. He further submits that Police Regulations are complete guide for use of minimum force. He has made a detailed reference to Regulations 150 and 154. According to the learned Advocate General since the prescribed Regulations 150 to 154 were complied with, the police cannot be accused of indiscriminate firing at the Nandigram at the unlawfully assembly. The Regulations ensure that only bare minimum force is used. These Regulations fall within the Rule in Maneka Gandhi’s (supra) case. In support of this proposition learned Advocate General relies on the judgment in the case o Gopalanachari Vs. State of Kerala, . This case discusses the definition of fair and reasonable procedure laid down under Article 21 in the definition given by Krishna Iyer, J.
58. The learned Advocate then relied on the judgments of the Supreme Court in the case of:
1. AIR India Vs. Nergesh Meerza and Others, ;
2. Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, .
59. According to the learned Advocate General these cases lay down that antithesis of just fair and reasonable is fanciful, arbitrary and vagarious. The test as to whether the procedure prescribed under the Regulation is just fair and reasonable ought not to be the same as the test which is applied to the Regulations governing service conditions or in labour cases. There is one very important difference between the Service Regulations and the 1943 Regulations viz., here; the Regulations have been made for control of riotous assembly. They have been framed to control the violence. The object is to secure peace with the use of minimum force. Therefore, the test of reasonable just and fair is to be judged in these circumstances. These Regulations cannot be equated with the Regulations that govern the conditions of service of public servants. Fairness of the Regulation can also not be judged on the basis of the procedures prescribed in International Conventions. Learned Advocate General submitted that the International Conventions would not be automatically applicable in all circumstances in India. It is an accepted principle of law that in any country the Municipal Law is the law that governs. In case of conflict in the provisions of the International Covenant with the Municipal Law, the provisions of the Covenant would have to be disregarded. In support of this submission the learned Advocate General has relied on the judgment in the case of Jolly George Varghese and Another Vs. The Bank of Cochin, .
60. In our opinion, these submissions are not without merit. But the question here is whether the procedure prescribed was followed. To reach a conclusion on this issue, some very important questions need to be answered. These answers can only be provided by an independent investigation being conducted into the events leading upto 14th March, 2007.
61. Learned Advocate General then submitted that an international covenant would have to be specifically incorporated in the Municipal Law to be accepted as law of that country. In support of the submission, learned Advocate General has relied on the judgment of the Supreme Court in the case of People’s Union for Civil Liberties Vs. Union of India and another, . In this case it is held even approval of a covenant by Parliament would not make it law till one is actually enacted. Learned Advocate General, therefore, submits that for the purpose of Article 21 the international covenants cannot add anything. Article 21 is clear and unambiguous, therefore, International Conventions cannot be relied upon. Learned Advocate General distinguished the judgment relied upon by Sri Sakti Nath Mukherjee in the case of Vishaka and others Vs. State of Rajasthan and Others, . This judgment was given in the absence of Indian Law with regard to sexaial harassment of female employees at the place of work. The guidelines were laid down by the Supreme Court under Article 142 of the Constitution of India (Paras 7 and 16). In support of the submission, learned Advocate General has relied on the judgment of the Supreme Court in the case of People’s Union for Civil Liberties Vs. Union of India (UOI) and Another, . These judgments would clearly indicate that international conventions can only be read into the Municipal Law when consistent with the Fundamental Rights.
62. On the question of locus standi learned Advocate General submits that Public Interest Litigation is not unlimited in its scope. It has to be confined within the well defined limits of judicial review. Learned Advocate General submits that the State Government has filed the affidavit in conformity with the directions given by this Court on 15th March, 2007. Elaborate details have been given about each and every incident. All the materials have been disclosed by the State. None has been given by the petitioner. In a Public Interest Litigation it was the duty of the petitioners to furnish the necessary particulars to the Court. Statements made in the affidavit filed by the State have not been controverted in any of the affidavit filed by the petitioners. In fact most of the affidavits have been filed on the basis of information given by the members of the Bhumi Ucched Pratirodh Committee. He makes a particular reference to the affidavit filed by Sri A.K. Mukhopadhyay. These affidavits have been affirmed on the basis of the newspaper reports or the reports of the electronic media. These affidavits submitted by the learned Advocate General cannot be relied upon. Learned Advocate General further submitted that sufficient material have been placed before the Court therefore, no further enquiry or investigation is required. The incident of firing cannot be legally criticized. The order to open fire was given by the competent officer. Those who actually fired cannot be held responsible. They have only obeyed orders. Learned Advocate General has relied on judgments of the Supreme Court in the cases of:
1. State of West Bengal Vs. Shew Mangal Singh and others, ;
2. Pancham Lal Vs. Dadan Singh,
63. This case was approved by the Supreme Court in the case of Akhilesh Prasad v. Union Territory of Mizoram, AIR 1981 SC 806, 1981 Cri LJ 407 . Learned Advocate General also relied on:
1. Empress v. Tucker, Norman & Thompson reported in Indian Decisions (7) Bombay 28 (para-50);
2. D.N. Srivastava, I.P.S. v. Shri Parthajoy Das and Ors. reported in 1983 Crimes 248 (paras 39, 40, 41, 52, 53, 54, 55).
There is no dispute with the proposition of law laid down in these cases. Indeed, the officer on the scene would be the best Judge as to the amount of force to be used, in a particular situation. This would not preclude the Court from exercising its power of judicial review. The aforesaid cases are wholly irrelevant for the decision in this case.
64. Learned Advocate General then relied on the reports filed before the Magistrate to show that the police could not investigate the crimes committed in the area. Therefore, there was no alternative with the police but to use force.
In our opinion, those reports only indicate that the police had an excuse, not to investigate. If can hardly be a justification to open fire on crowd agitating to protect their home and hearth.
65. In reply Mr. Mukherjee has submitted that exercise of sovereign power under Schedule-7 List-II Entry-1 has been wrongly claimed by the Executive. A sovereign power exists in the entire State and not in any particular organ of the State. He submitted that there could be no sovereign immunity to carnage.
We have considered the submissions made by learned Counsel for the parties. We will consider first the submissions made by the learned Advocate General. We do not find any merit in objection No. 1.
66. In the case of Pancham Lal (supra) the Patna High Court has held that the officer on the spot would be the best Judge of the degree of force which would be required to control a particular situation. It is quite different from sitting and calculating in a cool and serene atmosphere of a Court room dissecting the acts and counter-acts alleged by parties. This observation has been approved by the Supreme Court in the case of Akhilesh Prasad (supra). Again in the cases of Empress v. Tucker (supra) and D.N. Srivastava (Supra) it has been held that the opinion of the policemen as to what steps would succeed in diffusing the situation are relevant.
67. In our opinion, these observations would not support the submission of the learned Advocate General that the action of the police is not amenable to judicial review by the Court. All actions of the police would have to be justified, to have been lawfully taken under a procedure established by law. That procedure would have to be just fair and reasonable. Article 21 of the Constitution makes provision for protection of life and personal liberty of all persons within the territory of India.
68. We are unable to accept the submission of the learned Advocate General that since the situation in Nandigram was grave, it would be permissible to open fire to disperse the unlawful assembly. Even under the provisions of Criminal Procedure Code, 1973. The Police Act, 1861 and the West Bengal Police Regulation, 1943, indiscriminate, firing cannot be justified. We are of the opinion, that the reliance of the Learned Advocate General on the judgment of Romesh Thappar (supra), Dr. Ram Manohar Lohia (supra), Kanu Biswas (supra) and Niharendu Dutt Majundar (supra) is wholly misplaced. In the case of Romesh Thappar (supra), the Supreme Court considered the legality of an order made u/s 9(1A)of the Madras Maintenance of Public Order Act, 1949 on 1st of March, 1950 whereby the entry and circulation of the Bombay journal in English called Cross Roads was barred in the State of Madras. It was claimed that the aforesaid order contravenes the fundamental right of the petitioner to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. It was the case of the petitioner that Section 9(1A) of the impugned Act was void under Article 13(1) of the Constitution by reason of its being inconsistent with the fundamental rights guaranteed under Article 19(1)(a) of the Constitution. In that case, the claim of the Advocate General of Madras was that a petition under Article 32 of the Constitution of India ought not to have been filed without first taking resort to the High Court at Madras which under Article 226 of the Constitution has concurrent jurisdiction to deal with the matter. It was held that Article 32 was more appropriate as it provides ‘guaranteed’ remedy for the enforcement of those rights, and this remedial right is itself made a fundamental right by being included in Part III of the Constitution. It was observed that the Supreme Court is, thus, constituted the protector and guarantor of fundamental rights and, therefore, consistently with the responsibility so laid upon it, cannot refuse to entertain applications seeking protection against infringements of such rights.
69. On the other hand, the remedy under Article 226 of the Constitution is under the general jurisdiction, to entertain certain writs for the enforcement of the rights conferred by Part III or for any other purpose. In this context, it was observed that the expression “public order” is an expression of wide connotation and signifies that state of tranquillity which prevails among the members of a political society as a result of the internal regulations enforced by the Government which they have established. It was further observed that the terms “securing the public safety” and “the maintenance of public order” are used as apart of the wider concept of public, order. In that sense it was held that Section 9(1A) of the impugned Act were violative of Article 19(1)(a) of the Constitution. We may, note here the observations of the Supreme Court in paragraph 10 of the judgment which is as under:
10. We are therefore of opinion that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of Article 19, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order. It follow that Section 9(1A) which authorises imposition of restrictions for the wider purpose of securing public safety or the maintenance of public order falls outside the scope of authorised restrictions under clause (2), and is therefore void and unconstitutional.
70. Again, in the case of Dr. Ram Manohar Lohia (supra), the Supreme Court considered the question of interpretation of the words (in the interest of public order) in Article 19(2) of the Constitution. It was submitted by the learned Advocate General of Allahabad High Court that the words “in the interest of public order” are wider in connotation upon the words again for the maintenance of public order” has a very wide connotation as understood in America and England. The term “public order” in those countries is used to describe offences against public safety or public peace. However, in India under Article 19(2) this wide concept of “public order” is split up under different heads. It was observed as follows:
11. But in India under Article 19(2) this wide concept of “public order” is split up under different heads. It enables the imposition of reasonable restrictions on the exercise of the right to freedom of speech and expression in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to Contempt of Court, defamation or incitement to an offence. All the grounds mentioned therein can be brought under the general head “public order” in its most comprehensive sense. But the juxtaposition of the different grounds indicates that, though sometimes they tend to overlap, they must be ordinarily intended to exclude each other. “Public order” is therefore something which is demarcated from the others. In that limited sense, particularly in view of the history of the amendment, it can be postulated that “public order” is synonymous with public peace, safety and tranquillity.
71. In that case the learned Advocate General had submitted that the words “for maintenance of public order” and, therefore, any breach of law which may have the tendency, however remote, to disturb the public order would be covered by the said phrase. This submission was rejected by the Supreme Court with the following observations:
12…We do not understand the observations of the Chief Justice to mean that any remote or fanciful connection between the impugned Act and the public order would be sufficient to sustain its validity.
72. In the case of Kanu Biswas (supra) the appellant had challenged the order of detention which had been passed on the ground that he had been acting in a manner prejudicial to the maintenance of public order. In this case the Supreme Court noticed the observations made in the case of Dr. Ram Manohar Lohia (supra), wherein it was held that any contravention of law always affected order, before it could be said to affect public order, it must affect the community at large. The Supreme Court quoted from the judgments in the case of Arun Ghosh Vs. State of West Bengal, . In this case it was observed as follows:
6. …Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquillity. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order. Take for instance, a man stabs another. People may be shoked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may dislike the act. Take another case of a town where there is communal tension. A man stabs member of the other community. This is an act of a very different sort. Its implications are deeper and it affects the even tempo of life and public order is jeopardised because the repercussions of the act embrace large sections of the community and incite them to make further breaches of the law and order and to subvert the public order. An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different.
73. These observations would again not support the submission of the learned Advocate General that merely because the situation in Nandigram was said to be grave the police could open fire indiscriminately. We also do not find much substance in the submission of the learned Advocate General that firing by the police would be permissible to disperse an unlawful assembly, since the executive would have the power u/s 130 of Criminal Procedure Code to seek the assistance of armed forces to disperse an unlawful assembly. The judgment relied upon by the learned Advocate General in the case of Captain Buddhikota (supra) is not at all relevant to the submission made. In this judgment it is observed as follows:
7. Liberty occupies a place of pride in our socio-political order. And who knew the value of liberty more than the founding fathers of our Constitution whose liberty was curtailed time and again under Draconian laws by the colonial rules. That is why they provided in Article 21 of the Constitution that no person shall be deprived of his personal liberty except according to procedure established by law. It follows therefore that the personal liberty of an individual can be curbed by procedure established by law. The Code of Criminal Procedure, 1973, is one such procedural law. That law permits curtailment of liberty of anti-social and anti-national elements….
74. These observations cannot be understood to mean that resorting to indiscriminate gunfire would be permissible. The observations rather tend to show that liberty occupies a place of pride in our socio-political order.
We are unable to accept the submission of the learned Advocate General that discriminate firing by the police would be permissible under the provisions of Criminal Procedure Code, 1973. The Police Act, 1861 or the West Bengal Police Regulations, 1943. It is not possible to accept the submission that the mob had prevented the police from performing its duties. We are also unable to accept the submission that it is permissible to indiscriminately open fire to control the crowd. There is no material before the Court that the assembly of the farmers agitating against acquisition of their land was in any manner causing danger to the life of any police personnel. It is for this reason that the enquiry would be necessary to be conducted by an independent agency as to whether the crowd was actually carrying any lethal weapons. Unless such materials are placed before the Court, it cannot be held that the decision of the police to open fire was justified.
75. We may examine here the provisions of the Criminal Procedure Code, 1973, The Police Act, 1861 and the West Bengal Police Regulations, 1943. Sections 129 to 132 are placed in Chapter X, of the Criminal Procedure Code which deals with maintenance of public order and tranquillity. Section A of the aforesaid Chapter deals with unlawful assemblies. It is noteworthy that although Part A of Chapter X deals with unlawful assemblies it provides no definition of the term unlawful assemblies. Article 19(1)(b) of the Constitution of India confers upon all citizens of India to right to assemble peaceably. Therefore, any large assembly of demonstrator would not per se be either illegal or unconstitutional. What would be an unlawful assembly is defined u/s 141 of the Indian Penal Code. Under this section an assembly of five or more persons is designated as unlawful assembly, if the common object of the person composing that assembly is to overawe by criminal force, or show of criminal force, the Central or any State Government, or any public servant in the exercise of the lawful power of such public servant. No material has been placed before this Court to conclude that the huge crowd that had gathered to protest against the acquisition of land at Nandigram, had any such intention to overawe the State authorities. Even if it is accepted that the gathering had turned into an unlawful assembly. Section 129 would permit any Executive Magistrate or Officer-in-Charge of a police station or in the absence of any Officer-in-Charge, any police officer, not below the rank of Sub-Inspector to command the unlawful assembly likely to cause a disturbance of the public peace, to disperse. If on such command being given the assembly does not disperse, the Executive Magistrate or the officers referred to in Sub-section (1) may proceed to disperse such assembly by force. The underlying intention of this section appears to be disperse the assembly with the minimum amount of force and as little injury as possible. If the assembly shows no disposition to disperse quietly, force may be employed to disperse it and it would be permissible to require any male person to render assistance. The section, however, emphatically declares that such male person shall not be an officer or member of the armed forces and acting as such. The section indicates clearly that in order to disperse the crowd it is permissible to arrest and confine in jail the person constituting the unlawful assembly. Thereafter, the arrested persons can be punished according to law. It is only when action taken u/s 129 fails to disperse the assembly that an Executive Magistrate of the highest rank who is present may cause it to be dispersed by armed forces. It is the admitted case that no assistance was called in this case from the armed forces or the armed police, such as RAF, CRPF and BSF. Therefore, the reliance of the learned Advocate General on Sections 130 and 131, in support of his submission is not correct and we decline to accept the same. Therefore, at this stage it would not be possible to hold that the action of the police of indiscriminating firing into the crowd on 14.3.2007 was either legal or justified. It appears to us that the force used by the police cannot be justified u/s 129 of Cr. PC. The kind of force used is not contemplated u/s 129. Section 132 provides protection for acts done under Sections 129, 130 and 131. At this stage, it would not be wholly immature to hold that the police personnel who fired the actual gun shots were obeying any orders issued by the superior officer.
76. The action of the police would, therefore, raise some very serious questions, viz.:
(a) Was it necessary to surround the area by three thousand strong police force?
(b) Was the police action justified in virtually invading the villages?
(c) Did the officers concerned have any jurisdiction to order the police to open fire indiscriminately without identifying the targets or the ring leaders in the huge crowd?
(d) The crowd was no large by its very nature only individuals at the front would have been the targets of the bullets?
77. The fact situation has been depicted by the team of Advocates in their report. Mr. Mukherjee has made a reference to a diagram in the area where the police firing took place. He has reiterated time and again the pleadings in which it is categorically stated that the police firing that erupted on 14th of March, 2007 was in the nature of State sponsored terrorism. Furthermore, the report submitted by the doctors who visited the locality have actually shown the individuals who are responsible for rape, arson etc. In such circumstances, we are of the opinion that the learned Senior Counsel, Mr. Mukherjee, is justified in his submission that the High Court ought to exercise its power under Article 226/227 of the Constitution of India and issue necessary orders and directions to unearth the truth.
78. We are unable to accept the submission of the learned Advocate General that mere gathering of very large group of villagers would be so intimidating or awesome as to overawe the State or its authorities as required u/s 129 of the Cr. PC. The very wide definition of ‘force’ given in Section 349 of IPC, therefore, cannot be a justification for discriminate gun firing indulged in by the police, ostensibly disperse or control the crowd.
79. We have no hesitation in accepting that the provisions of Police Act, 1861 and the Police Regulations, Bengal, 1943 would fall within the definition of existing laws under Article 13 and Article 372 of the Constitution of India. Articles 13 and 372 are as under:
13. Laws inconsistent with or in derogation of the fundamental rights.-(1) All in force in the territory of India immediately before the commencement of this Constitution, insofar as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
(3) In this Article, unless the context otherwise requires,:
(c) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
(d) “Laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
372. Continuance in force of existing laws and their adaptation.:
(3) Notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 but subject to the other provisions of this Constitution all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority.
(4) For the purpose of bringing the provisions of any law in force in the territory of India into accord with the provisions of this Constitution, the President may by order make such adaptations and modifications of such law, whether by way of repeal or amendment, as may be necessary or expedient and provide that the law shall, as from such date as may be specified in the order, have effect subject to the adaptations and modifications so made, and any such adaptation or modification shall not be questioned in any Court of Law.
(5) Nothing in clause (b) shall be deemed:
(a) to empower the President to make any adaptation or modification of any law after the expiration of [three years] from the commencement of this Constitution; or
(b) to prevent any competent legislature or other competent authority from repealing or amending any law adapted or modified by the President under the said clause.
80. A bare perusal of the two Articles reproduced above makes it clear that Article 13(3)(a) defines “law” to include any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law. Article 13(3)(b) provides that laws in force would include the laws passed or made by a legislature or other competent authority, not previously repealed. Article 372 provides that all laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority. Therefore, in our opinion, the Police Act, 1861 and the Police Regulations, Bengal, 1943 would be laws in force under Articles 13 and 372 of the Constitution of India. This view of ours will find support from the judgment of the Supreme Court in the cases of Edward Mills Company Limited (supra), Govind v. State of Madhya Pradesh (supra) and Sukhdev Singh (supra). In our opinion the judgment in the case of Ratnakar Vishwanath Joshi (supra) is not relevant to the submission of the learned Advocate General.
81. We are unable to accept the submissions of the learned senior Counsel Mr. Mukherjee, that the operation of the 1943 Rules is restricted only to governing the service conditions of the police force. The regulations have been made by the Inspector General of Police u/s 12 of the Police Act, 1861. This section reads as follows:
12. Power of Inspector-General to make rules.-The Inspector-General of Police may, from time to time, subject to the approval of the [State Government], frame such orders and rules as he shall deem expedient relative to the organisation, classification and distribution of the police force, the places at which the members of the force shall reside, and the particular services to be formed by them; their inspection, the description of arms, accountrements and other necessaries to be furnished to them; the collecting and communicating by them of intelligence and information, and all such other orders and rules relative to the police force as the Inspector-General shall, from time to time, deem expedient for preventing abuse or neglect of duty, and for rendering such force efficient in the discharge of its duties.
82. A bare perusal of this section would show that it permits the Inspector-General to make rules with regard to the organization, classification and distribution of the police force as well as the particular services in the performed by them. The section also permits the Inspector-General to make rules relating to the police force, as the Inspector-General deemed expedient for preventing abuse or neglecting duties and for rendering such force efficient in the discharge of its duties.
83. In our opinion, this power cannot be restricted only to framing of rules regarding the service conditions of the police personnel. The learned advocate General had accepted the proposition that even laws under Article 13 would have to conform with the provisions of Articles 14 and 21 of the Constitution of India. He had submitted that the actions of the State are strictly in conformity with the law and Constitution of India. We have earlier noticed that the police actions cannot be considered to be justified under the provisions of the Criminal Procedure Code. We have already come to the conclusion that the Regulations would fall within the definition of law under Article 13 of the Constitution of India. We may notice now the provisions of these Regulations to determine as to whether they would satisfy the provisions of Articles 14 and 21 of the Constitution of India. The relevant Regulations are as under.
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.
(emphasis supplied).
92. In the case of Maneka Gandha (supra) it has been clearly held as follows:
120. To sum up, ‘procedure’ in Article 21 means fair, not formal procedure ‘Law’ is reasonable law, not any enacted piece.
The aforesaid proposition has been reiterated by the Supreme Court in the case of Olga Tellis (supra) as follows:
39. It is far too well-settled to admit of any argument that the procedure prescribed by law for the deprivation of the right conferred by Article 21 must be fair, just and reasonable (See E.P. Royappa Vs. State of Tamil Nadu and Another, ; Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, ; Madhav Hayawadanrao Hoskot Vs. State of Maharashtra, ; Sunil Batra Vs. Delhi Administration and Others etc., ; AIR 1979 745 (SC); Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, ; Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, ; Sunil Batra Vs. Delhi Administration and Others etc., ; Jolly George Varghese and Another Vs. The Bank of Cochin, ; Kasturi Lal Lakshmi Reddy, Represented by its Partner Shri Kasturi Lal, Jammu and Others Vs. State of Jammu and Kashmir and Another, : and Francis Coralie Mullin Vs. Administrator, Union Territory of Delhi and Others, .
40. Just as a mala fide act has no existence in the eye of law, even so, unreasonableness vitiates law and procedure alike. It is thereafter essential that the procedure prescribed by law for depriving a person of his fundamental right, in this case the right to life, must conform to the norms of justice and fair play. Procedure, which is unjust or unfair in the circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and consequently, the action taken under it. Any action taken by a public authority which is invested with statutory powers has, therefore, to be tested by the application of two standards. The action must be within the scope of the authority conferred by law and secondly, it must be reasonable. If any action within the scope of the authority conferred by law, is found to be unreasonable, it must mean that the procedure established by law made which that action is taken is itself unreasonable. The substance of the law cannot be divorced from the procedure which it prescribes for how reasonable the law is depends upon how fair is the procedure prescribed by it. Sir Raymond Evershed says that ‘The Influence of Remedies on Right’ (Current Legal Problems 1953, Volume 6.). “from the point of view of the ordinary citizen, it is the procedure that will most strongly weigh with him. He will tend to from his judgment of the excellence or otherwise of the legal system from his personal knowledge and experience in seeing the legal machine at work”. Therefore, “He that takes the procedure sword shall perish with the sword”. Per Frankfuter J. in Vitarelli v. Seaton 1959(3) Law ED 2d 1012.
41. Justice K. K. Mathew points out in his article on ‘The Welfare State, Rule of Law and Natural Justice”, which is to be found in his book ‘Democracy, Equality and Freedom’, that there is ‘substantial agreement in justice thought that the great purpose of the rule of law notice is the protection of the individual against arbitrary exercise of power wherever it is found’. Adopting that formulation. Bhagwati, J. speaking for the Court, observed in Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, , that it is “unthinkable that in a democracy governed by the rule of law, the executive Government or of its officers should posses arbitrary power over the interests of the individual. Every action of the Executive Government must be informed with reason and should be free arbitrariness. That is the very essence of the rule of law and its bare minimal requirement.
93. The scope and ambit of Article 14 has been considered in the case of P. Royappa (supra), which is an under:
85…In other words Article 14 is the genus while Article 16 is a species. Article 16 gives effect to the doctrine of equality in all matters relating to public employment. The basis principle which, therefore, informs both Articles 14 and 16 is equally and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose, J., “a way of life”, and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed, cabined and confined” within traditional and doctrine limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies, one belongs to the rule of law in a republic which the other, to the whim and caprice of an absolute monarch….
94. These observation make it abundantly clear that the Indian Constitution does not permit any arbitrary action. Any law which does not lay down a just and fair procedure would be declared arbitrary and ultra vires of Article 14 of the Constitution of India. Therefore, any vagueness in the law would have to be struck down as violative of Article 14. On this ground also Regulation 155(b) would have to be declared ultra vires. This view of ours will find support in Kartar Singh’s case (supra), which is as under:
130. It is the basis principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offends several important values. It is insisted or emphasized that laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law impermissible delegates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. More so, uncertain and undefined words deployed inevitably lead citizen to “steer far wider of the unlawful zone…than if the boundaries of the forbidden areas were clearly marked.
95. Same proposition has been reiterated by the Supreme Court in the case of D. K. Yadav (supra) which is as under:
11. The law must therefore be now taken to be well-settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Article 14 and such law would be liable be tested on the anvil of Article 14 and the procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Article 14. So it must be right, just and fair and not arbitrary, fanciful or oppressive.
12…Article 21 clubs life with liberty, dignity of person with means of livelihood without’ with the glorious content of dignity of person would be reduced to animal existence….
13…Article 21 guarantees right to life which includes right to livelihood, the deprivation thereof must be in accordance with just the fair procedure prescribed by law conformable to Articles 14 and 21 so as to be just, fair and reasonable and not fanciful, oppressive or at vagary….
14. It is thus well-settled law that right to life enshrined under Article 21 of the Constitution would include right to livelihood….
96. From the above observations of Supreme Court in the judgments quoted above, it becomes patent that the Regulation 155(b) would not be protected under Article 14 of the Constitution of India. In the case of Kharak Singh (supra) the Supreme Court considered the ambit of restrictions that can be placed on the freedom of movement of an individual guaranteed under Article 19(1). In that case the Supreme Court declared as unconstitutional, Regulation 236, clause (b) of the U.P. Police Regulations. This Regulation permitted domiciliary visits to the residence of the petitioner as allegedly being a history sheeter his movements were under surveillance. He was being visited by the village chowkider as well as the policeman regularly at night. They would knock at the door of his house at night and disturb his sleep. There restrictions were found to be in violation of Article 19(1)(d) of the Constitution of India. It was held as under:
5…Though learned Counsel for the respondent started by attempting such a justification by invoking Section 12 of the Indian Police Act he gave this up and conceded that the regulations contained in Ch. XX had no such statutory basis but were merely executive or departmental instructions framed for the guidance of the police officers. They would not therefore be “a law” which the State is entitled to make under the relevant Clauses (2) to (6) of Article 19 in order regulate or curtail fundamental rights guaranteed by the several sub-clauses of Article 19(1), nor would the same be “a procedure established by law” within Article 21. The position therefore is that if the action of the police which is the arm of the executive of the State is found to infringe any of the freedoms guaranteed to the petitioner the petitioner would be entitled to the relief of mandamus which he seeks, to restrain the State from taking action under the regulations.
In our opinion these observations would be equally applicable to Regulation 155(b) of the Police Regulations, Bengal, 1943. We, therefore, declare the aforesaid Regulation ultra vires, Articles 14, 19 and 21 of the Constitution of India.
97. Learned Advocate General has submitted that the Criminal Procedure Code, 1973, Police Act, 1861 and the Police Regulations, Bengal, 1943 have all been enacted to enable the Government to exercise sovereign authority. Therefore, there was no scope for this Court to exercise its power of the judicial review under Article 226 of the Constitution of India. On the other hand, Mr. Mukherjee, learned Senior Counsel, submitted that the powers of the State even for exercising sovereign functions is not unlimited. This power like, any other power of the State, is subject to the provisions of Articles 14, 19 and 21 of the Constitution of India.
98. We find merit in the aforesaid submissions of the learned Senior Counsel. The concept of sovereignty has been considered by the Supreme Court in the case of N. Nagendra Rao and Co. Vs. State of Andhra Pradesh, . The concept of sovereignty in India cannot be understood in the context of the sovereignty concept as it is understood in England. In that country House of Qommons is not bound by any limits on its sovereign power. That is why, it was said that “The only limit is that the House of Commons cannot change a man into a women.” That is to say that:- “The House of Commons could not do what only God can do”. This illimitable power propagated by Austin is not available to the Indian Parliament. We have a written Constitution. Therefore, there can be no concept of sovereignty like the House of Commons which has no written Constitution. Here, the State takes the power from the written Constitution. In this country the State has to act within the confines of the law. It is amenable to Court’s jurisdiction. If one considers Article 300A of the Constitution of India in juxtaposition with the principle eminent domian, it becomes clear that there is no such concept as sovereign immunity. This Article provides that no person shall be deprived of his property save by authority of law. Though, right not to be deprived of property save by authority of law is no longer a fundamental right, it continues to be a Constitutional right. This right forbids the State of depriving a citizen of this country of his property except under the authority of law. Even in England, there is no absolute immunity of the State after the enactment of the Crown Proceedings Act, 1947. The officers of the sovereign are liable for their tortuous acts. We may notice here in this context the judgment of the Supreme Court in the case of State of Andhra Pradesh Vs. Challa Ramkrishna Reddy and Others, . It was observed as follows:
19. Immunity of the State for its sovereign acts is claimed on the basis of the old English maxim that the king can do no wrong. But even in England, the law relating to immunity has undergone a change with the enactment of the Crown Proceedings Act, 1947. Considering the effect of the Act, it is stated in Ratanlal’s Law of Torts (23rd. Edn.) as under:
The Act provides that the Crown shall be subject to all those liabilities in tort to which, if it were a person of full age and capacity, it would be subject (1) in respect of torts committed by its servants or agents, provided that the act or omission of the servant or agent would, apart from the act having given rise to a cause of action in tort against that servant or agent or against his estate; (2) in respect of any breach of house duties which a person owes to his servants or agents at common law by reason of being their employer; (3) in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property. Liability in tort also extends to breach by the Crown of a statutory duty. It is also no defence for the Crown that the tort was committed by its servants in the course of performing or purporting to perform functions entrusted to them by any rule of the common law or by statute. The law as to indemnity and contribution as between joint tortfeasors shall be enforceable by or against the Crown and the Law Reform (Contributory Negligence) Act, 1945 binds the Crown. Although the Crown Proceedings Act preserves the immunity of the sovereign in person and contains savings in respect of the Crown’s prerogative and statutory powers, the effect of the act in other respects, speaking generally, is to abolish the immunity of the Crown in tort and to equate the Crown with a private citizen in matters of tortuous liability.
20. Thus, the Crown in England does not now enjoy absolute immunity and may be held vicariously liable for the tortuous acts of its officers and servants.
21. The maxim that the king can do no wrong or that die Crown is not answerable in tort has no place in Indian jurisprudence where the power vests, not in the Crown, but in the people who elect their representatives to run the Government, which has to act in accordance with the provisions of the Constitution and would be answerable to the people for any violation thereof.
22. Right to life is one of the basic human rights. It is guaranteed to every person by Article 21 of the Constitution and not even the State has the authority to violate that right. A prisoner, be he a convict or under-trial or a detenu, does not cease to be a human being. Even when lodged in the jail, he continues to enjoy all his fundamental rights including the right to life guaranteed to him under the Constitution. On being convicted of crime and deprived of their liberty in accordance with the procedure established by law, prisoners still retain the residue of Constitutional rights.
25. The right of prisoners, including their fundamental rights have been culled out by this Court in a large number of decision, all of which may not be referred to here. In State of Maharashtra v. Prabhakar Pandurang Sanzgiri it was held that conditions of detention cannot be extended to deprivation of other fundamental rights and the detenu, who has written a book in Marathi, could not be prohibited from sending the book outside the jail for its publication. In D. Bhuvan Mohan Patnaik v. State of A.P., it was laid down that convicts are not denuded of all the fundamental rights they possess. Chandrachud, J. (as he then was) held:
The security of one’s person against an arbitrary encroachment by the police is basic to a free society and prisoners cannot be thrown at the mercy of policemen as if it were a part of an unwritten law of crimes. Such intrusions are against the very essence of scheme of ordered liberty (See, D. Bhuvan, SCC p. 188, para 9).
99. In this country, all citizens enjoy certain fundamental rights even a prisoner is entitled to certain basic rights. The State cannot therefore have unbridled power to take away those fundamental rights of the citizens which include their lives, except in accordance with procedure prescribed by law. In various affidavits and petitions, the State has been accused of State indulging in sponsored terrorism. In this case, the villagers had gathered to prevent the State from taking forcibly acquisition of their lands. This gathering cannot be termed as an unlawful assembly. The allegations are that brute force has been used to crush the agitation against the acquisition of villagers land. The atrocities had been committed by the police in collaboration with known and unknown persons. In such circumstances it would be wholly erroneous to permit the local police to investigate. The petitioners are not asking for an investigation to be conducted under Delhi Special Establishment Act, 1946. They are asking that the CBI should investigate the case on orders of the Court which have been made to secure the ends of justice. There are numerous examples where investigation by the CBI has been directed, when direct allegations have been made against the police. In this case, the allegations are so serious there is no scope for doubt that the only course open for this Court is to direct the CBI enquiry to continue. We quote here only three cases where CBI enquiry was directed to be held by the Court:
2. Punjab and Haryana High Court Bar Association Vs. State of Punjab and Others, ;
3. Shashikant v. Central Bureau of Investigation and Ors. reported in 2007(1) SCC 630.
100. We are unable to accept the submissions of the learned Advocate General that investigation u/s 6 of the Delhi Special Establishment Act, 1946 would be limited only to cognizable offences. The cases cited by learned Advocate General in support of this proposition do not lay down the proposition that has been advanced by the learned Advocate General. In the case of P.V. Vijayaraghavan (supra) a distinction was made between ‘case’ and ‘offence’ in terms of Section 173 of the Criminal Procedure Code. It was argued that a case may involve investigation into many offences. The chargesheet u/s 173 relating to all offences had to be contained in one document. In this proceeding it was observed by the Supreme Court as follows:
10. The expression “case” used in the provisions under examination has to be understood in the general sense and not in a narrow or technical way. The words “offence” and “case ” are not synonymous, though an offence always leads to a case and a case would always involve an offence or offences. An occurrence or transaction may involve commission of only one offence; or it may involve several offences. When a police officer receives information about the commission of a cognizable offence, and records the same, he said to register a case, sometimes called a Crime Case. “Case”, understood in this general sense means the case before the police officer arising from the information placed before him regarding an occurrence in which the offence or offences are committed. “Case” relates to the transaction of which information is given and not merely one of the offences committed during the course of the transaction.
101. Gajraj Singh’s case (supra) related to the renewal of a permit which had been granted under the Motor Vehicles Act, 1939 which had been repealed by the Motor Vehicles Act, 1988. The question was as to whether by virtue of the repealed of the 1939 Act, it was necessary for the appellant to obtain a new permit under the 1988 Act. This judgment is wholly irrelevant for the controversy proceeding involved in the present proceeding. Even, otherwise we are of the opinion that any limit prescribed u/s 6 of the Delhi Special Establishment Act, 1946 would only apply in cases where the CBI suo motu takes upon itself to investigate a case relating to offences which had been committed outside the territory of Delhi. This restrictive conditions would not be applicable to cases where the CBI has been directed to investigate the matter by the High Court in exercise of its power under Article 226 of the Constitution of India. In the case of H. N. Rishbud (supra) the Punjab and Haryana High Court had in exercise of revisional jurisdiction refused the order of the Special Judge, Delhi quashing certain criminal proceedings pending before him against the appellant under the Penal Code and the Prevention of Corruption Act, 1947. The proceedings were quashed on the ground that the investigation had been conducted illegally in contravention of Sub-section (4) of Section 5 of the Prevention of Corruption Act, 1947. Under this section a police officer, below the rank of Deputy Superintendent, shall not investigate any offence punishable under Sub-section (2) of Section 5 without the order of a Magistrate of First Class. Since the investigation had not been conducted in accordance with statutory provisions, the question arose as to whether proceedings initiated on the basis of such investigation would be illegal. In answering to this question, it was observed that the provisions requiring that the investigation shall be made by a police officer not below the rank of DSP would be mandatory. Even then it was held that the trial that followed would not be vitiated only on the ground that the investigation had not been conducted by an officer authorized to do so. It was also held that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. In the case of Mobarik Ali Ahmed, the Supreme Court has clearly held as follows:
19…It may also be mentioned that even his arrest in India for the purpose of a trial in respect of a fresh offence is considered not to be justified, this by itself cannot vitiate the conviction following upon his trial. This is now well-settled by a series of cases (See Parbhu v. Emperor Lumbhardar Zutshi v. The King; and H.N. Rishbud v. State of Delhi). This contention must accordingly be overruled.
102. We, therefore, reject the submissions of the learned Advocate General that the CBI investigation would be limited only to individual cognizable offences. We are also unable to accept the submission that as the police personnel were obeying the orders of the superior they would be immune from any criminal prosecution. This submission, in our opinion presupposes that order to open fire had been given, by an officer competent to do so. It further presumes that the police personnel that opened fire had actually been obeying the orders of the superiors. These matters are yet to be investigated. It is precisely for these reasons that an independent inquiry by CBI is required in the facts and circumstances of this case. The observations made by the Supreme Court in the case of Shew Mangal Singh and Ors. (supra), are again of no assistance to the case pleaded by the learned Advocate General. In that case, the respondents who were all police officers had been acquitted of charges u/s 302 read with Section 34 of the Indian Penal Code. This Court had accepted the defence of the accused that the Deputy Commissioner of Police had given the firing orders, as a result of which two persons were killed. The High Court found that the particular situation warranted and justified the order issued by the Deputy Commissioner of Police to open fire. It was in those circumstances, that the Supreme Court observed as follows:
12…If that order was justified and is therefore lawful, no further question can arise as to whether the respondents, who acted in obedience to that order, believed or did not believe that order to be lawful. Such an inquiry becomes necessary only when the order of the superior officer, which is pleaded as a defence, is found not to be in conformity with the commands of the law.
103. These observations clearly show that on the basis of the material placed before it, the Court has to come to a conclusion as to whether the officer was justified in giving the order to open fire. In the present case, such investigation is yet to be made. This can only be done by an independent investigating team formed by the CBI Learned Advocate General had submitted that an inquiry had already been conducted under Regulation 157 of the Police Regulations, 1943. Since such an inquiry had already been held, no further directions should be given to continue with the CBI inquiry which was ordered by this Court on 15″‘ of March, 2007. We are unable to accept the aforesaid submission. Such an inquiry cannot be put on the same pedestal as an inquiry by an independent authority. Learned Advocate General then submitted that this Court would have no jurisdiction to order an inquiry in the absence of consent given by the State Government as required u/s 6 of the Delhi Special Establishment Act, 1946. Learned Advocate General submitted that the powers and jurisdiction of the High Court under Article 226 of the Constitution of India are not on the same level as the powers of the Supreme Court under Article 142 of the Constitution of India. We have no hesitation in accepting that the powers exercised by the Supreme Court under Article 142 of the Constitution of India which are distinct from the powers of the High Court under Article 226 of the Constitution. In the case of Union Carbide Corporation (supra), it is clearly held as follows:
43. It is necessary to set at rest certain misconceptions in the arguments touching the scope of the powers of this Court under Article 142(1) of the Constitution. These issues are matters of serious public importance. The proposition that a provision in any ordinary law irrespective of the importance of the public policy on which it is founded, operates to limit the powers of the Apex Court under Article 142(1) is unsound and erroneous. In both Garg’s as well as Antulay ‘s case the point was one of violation of Constitutional provisions and Constitutional rights. The observations as to the effect of inconsistency with statutory provisions were really unnecessary in those cases as the decision in the ultimate analysis turned on the breach of Constitutional rights. We agree with Sri Nariman that the power of the Court under Article 142 insofar as quashing of criminal proceedings are concerned is not exhausted by Section 320 or 321 or 482 Cr. PC or all of them put together. The power under Article 142 is at an entirely different level and of a different quality. Prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the Constitutional powers under Article 142. Such prohibitions or limitations in the statute might embody and reflect the scheme of a particular law, taking into account the nature and status of the authority or the Court on which conference of powers – limited in some appropriate way-is contemplated. The limitations may not necessarily reflect or based on any fundamental considerations of public policy. Sri Sorabjee, learned Attorney-General, referring Garg’s case, said that limitation on the powers under Article 142 arising from ‘inconsistency with express statutory provisions of substantive law’ must really mean that be understood as some express prohibition contained in any substantive statutory law. He suggested that if the expression ‘prohibition’ is read in place of ‘prohibition’ that would perhaps convey the appropriate idea but we think that such prohibition should also be shown to be based on some underlying fundamental and general issues of public policy and nor merely incidental to a particular statutory scheme or pattern. It will again be wholly incorrect to say that powers under Article 142 are subject to such express statutory prohibition that would convey the idea that statutory provisions override a Constitutional provision. Perhaps, the proper way of expressing the idea is that in exercising powers under Article 142 in assessing the needs of “complete justice’ of a cause or matter, the Apex Court will take note of the express prohibitions in any substantive statutory provision based on some fundamental principles of public policy and regulate the exercise of its power and discretion accordingly. The proposition does not relate to the powers of the Court under Article 142, but only to what is or is not ‘complete justice’ of a cause or matter and in the ultimate analysis of the propriety of the exercise of the power. No question of lack of jurisdiction or nullity can arise.
Learned Attorney-General said Section 320 Criminal Procedure Code is ‘exhaustive of the circumstances and conditions under which composition can be effected.’ (See Sankar Rangayya v. Sankar Ramayya AIR 1916 Mad. 483 at P. 485 and that ‘the Courts cannot go beyond a test laid down by the Legislature for, determining the class of offences that are compoundable and substitute one of their own.’ Learned Attorney-General also referred to the following passage in Biswabahan Das Vs. Gopen Chandra Hazarika and Others, :
If a person is charged with an offence, then unless there is some provision for composition of it the law must take its course and the charge enquired into resulting either in conviction or acquittal.
He said that ‘if a criminal case is declared to be non-compoundable, then it is against public policy to compound it any agreement to that end is wholly void in law.’ [see ILR (1913) 40 Cal. 113 at 117-118]; and submitted that Court cannot make that legal which the law condemns’. Learned Attorney-General stressed that the criminal case was an independent matter and of great public concern and could not be the subject-matter of any compromise or settlement. There is some justification to say that statutory prohibition against compounding of certain class of serious offences, in which larger social interests and social security are involved, is based on broader and fundamental considerations of public policy. But all statutory prohibitions need not necessarily partake of this quality. The attack on the power of the Apex Court to quash the criminal proceedings under Article 142(1) is ill-conceived. But the justification for its exercise is another matter.
104. Perusal of the above would show that there is no discussion in the aforesaid judgment with regard to powers of the High Court under Article 226 of the Constitution of India. Again in the case of Delhi Judicial Services Association, Delhi Judicial Service Association, Tis Hazari Court, Delhi Vs. State of Gujarat and others, , powers of the Supreme Court under Article 142 of the Constitution were considered and it was observed as follows:
51…No enactment made by Central or State Legislature can limit or restrict the power of this Court under Article 142 of the Constitution, though while exercising power under Article 142 of the Constitution, the Court must take into consideration the statutory provisions regulating the matter in dispute. What would be the need of “complete justice” in a cause or matter would depend upon the facts and circumstances of each case and while exercising that power the Court would take’ into consideration the express provisions of a substantive statute. Once this Court has taken seisin of a case, cause or matter, it has power to pass any order or issue direction as may be necessary to do complete justice in the matter.
It is clear that the Supreme Court was not discussing the powers of the High Court under Article 226 of the Constitution of India. Learned Advocate General had then submitted that provisions of Delhi Special Establishment Act, 1946 are based on a public policy which has to be respected. In support of his submission, he has relied on the judgment of the Supreme Court in the case of Ajay Kumar Singh’s case (supra). We are of the considered opinion that the judgment in the aforesaid case is not relevant at all. The matter is related to reservation of seats in post-graduate medical admission test. In the case of Sanchalakshri and Another Vs. Vijayakumar Raghuvirprasad Mehta and Another, it has been held that it would not be correct to say that the High Court/Tribunal possesses the same power which the Supreme Court had under Article 142 of the Constitution of India for doing complete justice, even in the absence 6f such a provision. Again, in the case of AIR 2000 SC 3638 the Supreme Court again observed as follows:
…Apart therefrom, the language employed by this Court in Kekha Chaturvedi ‘s case would suggest that this Court was employing the powers conferred on it under Article 142 to do complete justice. The High Court does not have such powers. Having found on merits in favour of the writ petitioners be do not think that the High Court was justified in declining Any relief to them.
105. These observations were made by the Supreme Court as the High Court had declined to grant relief to the petitioners only on the ground that respondents who had been illegally selected, had worked on the post for 9 years. In these circumstances, it was held that the High Court was not justified in declining any relief to the petitioners, having held the appointment of 2/3rd of the respondents as legal. It is indisputable that the High Court under Article 226 of the Constitution of India has a power which is distinct from the power of the Supreme Court under Article 142 of the Constitution of India. The Supreme Court has the power under Article 142 of the Constitution of India to do complete justice in matters that relate to breach of fundamental rights under Article 32 of the Constitution of India. Similarly, the High Court has the power under Article 226 of the Constitution of India to do substantial justice between the parties, by giving appropriate directions. It has been held by now in a catena of judgments that the High Court in exercise of powers under Article 226 of the Constitution of India has the power to mould the relief to do substantial justice between the parties. The extent of powers and jurisdiction of the High Court under Article 226 of the Constitution of India has been considered and settled by a three-Judge Bench of the Supreme Court in the case of B.C. Chaturvedi Vs. Union of India and others, . It has been held as follows:
18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority , being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/ appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare case, impose appropriate punishment with cogent reasons in support thereof.
22. The aforesaid has, therefore, to be avoided and I have no doubt that a High Court within its jurisdiction to modify the punishment/penalty by moulding the relief, which power in undoubtedly has, in view of long lines of decisions of this Court, to which reference is not deemed necessary, as the position is well-settled in law. It may, however, be stated that this power of moulding relief in case of the present nature can be invoked by High Court only when the punishment/penalty awarded shocks the judicial conscience.
23. It deserves to be pointed out that the mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice, and if moulding of relief would do complete justice between the parties, the same cannot be ordered. Absence of provisions like Article 142 is not material, according to me. This may be illustrated by pointing out that despite there being no provision in the Constitution parallel to Article 137 conferring power of review on the High Court, this Court held as early as 1961 in Shivdeo Singh and Others Vs. State of Punjab and Others, , that the High Courts too can exercise power of review which inheres in every Court of plenary jurisdiction. I would say that power to do complete justice also inheres in every Court, not to speak of a Court of plenary jurisdiction like of High Court. Of course, this power is not as wide which this Court has under Article 142. That, however, is the different matter.
106. In our opinion, these observations are a complete answer to the objection raised by the Supreme Court to the exercise of power under Article 226 of the Constitution of India in entertaining these proceedings as well as writ petition under Article 226 of the Constitution of India. The aforesaid observations of the Supreme Court were followed by the Supreme Court in the case of LLP. State Road Transport (supra). After taking into consideration the aforesaid observations, it has been observed as follows:
8. This will show that not only this Court but also the High Court can interfere with the punishment inflicted upon the delinquent employee if, that penalty, shocks the conscience of the Court. The law, therefore, is not, as contended by the learned Counsel for the appellants, that the High Court can, no circumstance, interfere with the quantum of punishment imposed upon a delinquent employee after disciplinary proceedings.
The aforesaid observations in. B.C. Chaturvedi’s case (supra) were again reiterated in the case of Badrinath (supra). It was held as follows:
89. Learned Senior Counsel appearing for the respondents, however, contended that it is not the Province of this Court to issue a mandamus to promote the appellant to the super-time scale nor to assess his grading. See Union of India and Others Vs. Lt. Gen. Rajendra Singh Kadyan and Another, . This Court, it is true, does not normally make any such assessment on its own nor does it ordinarily issue a mandamus to promote an officer to the super-time scale. This is a general principle.
90. We may, however, point out that it is not as if there are no exceptions to this general principle. The occasions where the Court issued a writ of certiorari and quashed an order and had also issued a mandamus at the same time to the State or public authority could be very rare but we might emphasize that the power of this Court to mould the relief in the interests of justice in extraordinary cases cannot be doubted. In Comptroller and Auditor-general of India, Gian Prakash, New Delhi and Another Vs. K.S. Jagannathan and Another, such a power on the part of this Court was accepted by a three-Judge Bench. Madon, J. referred to the observations of Subba Rao, J. (as he then was) in Dwarka Nath Vs. Income Tax Officer, Special Circle D-ward, Kanpur and Another, wherein the learned Judge explained that our Constitution designedly used wide language in Article 226 to enable the Courts to ‘reach justice wherever found necessary’ and ‘to mould the reliefs to meet peculiar and complicated requirements of this country’. Justice Madon also referred to Mayor of Rochester v. Regina 1858 EB and E 1024, King v. Revising Barrister for the Borough of Hanley 1912(3) KB 518, Padfield v. Minister of Agriculture, Fisheries and Food 1968 AC 997 and to a passage from Halsbury’s Laws of England, 41 Ed. Vol. 1, p. 59. Finally Madon, J. observed (para 20 of AIR and Lab IC):
There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion.
We emphasise the words underlined in the above passage to the effect that the Court may in some rare situations itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion. The same view was expressed by another three-Judge Bench in B.C. Chaturvedi Vs. Union of India and others, even regarding disciplinary cases. Verma, J. (as he then was) observed (at p. 782, para 18) as follows:
…The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief either directing the disciplinary authority/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.
The underlined words reiterate the powers of this Court in rare and exceptional cases.
The aforesaid ratio of law would clearly show that the objection raised by the learned Advocate General on the basis of the judgments in the cases of Panchamlal (supra), Akhilesh Prasad (supra), Empress v. Tucker (supra) are wholly misconceived. We have no hesitation in rejecting the objection raised by the learned Advocate General.
107. We also do not find much merit in the submission of the learned Advocate General that CBI inquiry cannot be continued as no consent has been given by the State of West Bengal. In our opinion, the learned Advocate General is factually incorrect in this submission. We have noticed that on 15th March, 2007 the Chief Minister of West Bengal Buddhadev Bhattacharya made a candid disclosure of all the facts in the West Bengal Legislative Assembly of all the events leading up to the incident on 14th March, 2007. We may produce here the relevant extracts of the statements:
ASSEMBLY
15.03.2007
12:05/10
Sri Buddhadeb Bhattacharya: Hon’ble Speaker Sir, in obedience to your direction, I am producing here my Statement with regard to the incident that took place at Nandigram, yesterday, i.e. on 14th March, 2007. At the outset I should mention that, I, on behalf of this house express my bereavement to those, who were the victims of yesterday’s incident. Whatever may be the situation, death is always woeful and no one is supposed to hust for such death. It would have been better if this can be avoided. But why that incident occurred? Under what circumstances did it occur? I intend to make a preface on it.
The Union Government and the State Government jointly worked out on a proposal at New Delhi and decided to set-up a chemical hub in our State. Eight other States were also the contestants, but we finally emerged as winner. Indian Oil Corporation is the primary anchoring investor of this chemical hub, and we made an agreement with them. Since Nandigram is just beside Haldia, so we decided to set-up chemical hub there. Just a bridge is required to be constructed to connect Nandigram with Haldia. Thirty years back Haldia was a mere village of fisherman, now if we can set up a chemical hub at Nandigram, in future it will become a developed industrial town like Haldia. But the proposal was at its primary stage. On 28th December, 2006 Haldia Development Authority issued a circular to its block office. It was a mistake. It had came to my notice after two days and then and there I instructed Haldia Development Authority and District Magistrate not to issue any notice on land acquisition at any spot. An official instruction was sent to Haldia Development Authority and they withdraw their circular. I told District Magistrate to inform all the political parties that there was no question of acquisition of land at Nandigram. You are also aware that afterwards, on 11th February I had attended a mass relay at Khejuri and there I pronounced clearly that we decided to build Nandigram as another developed industrial town beside Haldia, but we will not proceed further against the will of local people. We should not do any work forcibly. If the local people are not desirous, we will not set up chemical hub there. In the prevailing situation. I am repeating my Statement before the house that if the people of Nandigram are not willing, there would be no chemical hub there. But we will set up chemical hub elsewhere. Because as a part of that chemical hub I.O.C. will install refinery. The downstream units will produce textiles from polymer and rubber from Butadiene. As a whole a developed Chemical Industrial Zone will be formed. But if the local people are reluctant, the venue of the proposed hub will not be Nandigram.
This is our stand, we will not proceed against the will of the people. But after that incident, since 3rd January the situation of Naidgram became volatile. O.C., Nandigram P.S. was attacked. One jeep was burnt to ashes. At Garchakraberia market another police jeep was set on fire. This violence continued for three days i.e. on 4th, 5th and 6th January. Untoward incidents in this or that form recurred and unfortunately some people within Nandigram destroyed the roads, bridges and culverts – practically from 7th January onwards administration was not in a position to take steps and became totally helpless. From the very next day and thereon, the District Magistrate has convened all party meeting time and again. The question of restoration of peace in the locality was discussed in those meetings. The bridges and roads which were destroyed should be reconstructed. But, in spite of several meetings ‘Bhumi Ucched Committee’ declined to extend cooperation. Practically the Government administration there, has totally become paralysed. Development work both at the Government level and at the Panchayat level has been zeopardised. While the roads, bridges and culverts are being broken, simultaneously, around 2,500 left activists have been compelled to leave Nandigram. Thousand people are still spending their days and nights in the camp. In the meantime another incident took place as one police officer went there in search of a criminal Sadhu Charan Chattopadhyay was brutally attacked and killed. His body was found after three days.
Situation started worsening day by day. Amidst this abnormal situation Secondary Examination who about to start on 10th March. Then the District Magistrate convened another meeting and requested all the parties to take steps, so that the examination can be held without any disturbances. In the last meeting, all the parties were present, including our party, CPI, Forward Block, R.S.P. and so on. But Congress and Trinamool Congress did not attend the meeting and the SUCI intimated officially that they will not turn up. On that meeting held on 10u’ March, it was decided that to restore peace in the area and for the repairing work of bridges and roads. Government will have to take up initiative and free movements of police and Government officials will have to be insured. How can it be possible that throughout a large area, there will be no rule of law? Can a Government tolerate such thing that for two and half months, administration would remain completely detuned? Not a matter of a day or two or ten days, administration there, was ceased to exist for two and half months long. In spite of repeated requests, they did not turn up in the meeting convened by the District Magistrate. In these circumstances, we, at the administrative level resolve to intervene. After the meeting held on 10th March, our Home Secretary made an open statement that, to take control over the situation we will have to go there. I hoped that they would accept this proposal of the Government.
Police were to intervene after two and half months but that even did not get any possible response from them. Police were not going to get control over the land, because that is not the duty of the police. And Government has also not taken any decision to acquire land at Nandigram. I have spoken out time and again and when I have taken the decision, when I’m giving statement, that is final. Then will be no acquisition of land at Nandigram. Police went there yesterday but not to acquire land. At the beginning situation was peaceful, but then pandemonium started. At first police used tear gas, but failed. Then rubber bullets were used but in vain. At last police was compelled to fire. As a result people from both sides died. As per our information till now, 14 people have died. 70-71 are injured, 42 police personnel are injured, 20 firearms have been recovered. Now, today in the nursing. I have got information that situation is under control. A police camp has been set-up at Sonachura. Police are on march there. After yesterday’s incident till now nothing has happened again. No more untoward incident took place and I hope that won’t happen again. Gradually local people will co-operate with administration and ultimately peace will prevail in Nandigram. Resumption of Government work will be possible. But that tragic incident of death has shocked everyone. So, when I decided to give my statement I was supposed to declare our decision to hold judicial enquiry part when I came here, I was informed that a Public Interest Litigation was filed in High Court today. The Hon’ble Chief Justice has pronounced judgment to hold a CBI enquiry. So we are not going to start judicial enquiry, I will act in obedience to the judgment of Hon’ble High Court. So CBI may hold enquiry. We want a true and fair enquiry on the role of the administration. Was there any error on our part? Why this confrontation took place? Why some had to sacrifice their lives? It needs a total enquiry. I hope though opposition has walked out we still believe on three points – there will be no chemical hub at Nandigram against the will of the people. No notice in connection with land acquisition will be served. Government intends to maintain the normal functioning of the administration.
We were forced to take these steps after two and half months and if they were guided by good sense, then this confrontation could not have been occurred. Police was compelled to do this to control the situation. But having failed to do so they had to fire. I express my condolence to the memory of those who lost their lives and hope with active co-operation from our opposition, we will be able to turn the situation back to normalcy. Thank you Sir.
108. A perusal of the aforesaid statement would show that the Chief Minister has categorically stated that the tragic incident of death has shocked everyone. He has further stated that when he had decided to give the statement he was supposed to declare the decision of the Government to hold judicial inquiry. But when he went to the Assembly he was informed that a Public Interest Litigation had been filed in the Hon’ble High Court that day. The Chief Minister then notices that the High Court had passed an order to hold a CBI inquiry. It is emphatically stated that the Government is not going to start judicial inquiry. It is also stated that the Chief Minister will act in obedience of the judgment of this Court. Thereafter, it is stated that “So CBI may hold enquiry. We want a true and fair enquiry on the role of the administration. Was there any error on our part? Why. this confrontation took place? Why some had to sacrifice their lives? It needs a total enquiry.”
109. These observations leave no manner of doubt that the Chief, Minister had given his unconditional consent to hold the CBI inquiry. In the face of this, the learned Advocate General submitted that the aforesaid opinion was the personal statement of the Chief Minister. We are unable to accept such a submission when solemn statements are made in Parliament or in the Legislative Assembly. The people of the country or the State are entitled to rely on the same to not accept the statement has been truthful would be contrary to the Parliamentary Practice as well as the Legislative Practice. The statements would be binding on the author of the statements in view of Rule 372 of the Parliamentary Practice and Rule 346 of the Assembly Practice. Even otherwise we are unable to accept the submission of the learned Advocate General that this Court cannot direct the CBI to continue with the enquiry without the consent of the Government u/s 6 of the Delhi Special Establishment Act, 1946. We may With advantage refer to some of the observations made by the Supreme Court in the case of State of West Bengal and Others Vs. Sampat Lal and Others, (Three-Judges), which are as follows:
One of the controversies which loomed large before the Division Bench of the Calcutta High Court was as to the appointment of the DIG, CBI to inquire into the matter in the absence of proper consent of the State Government. That question has not been recanvassed before us and it has been accepted by Counsel for all the parties including the Additional Solicitor General that while Section 6 of the Delhi Special Police Establishment Act, 1946 (‘Act’ for short) would require the consent of the State Government before jurisdiction u/s 5 of that Act is exercised by officers of that establishment, when a direction is given by the Court in an appropriate case, consent envisaged u/s 6 of the Act would not be a condition precedent to compliance with the Court’s direction. In our considered opinion Section 6 of the Act does not apply when the Court gives a direction to the CBI to conduct an investigation and Counsel for the parties rightly did not dispute this position (emphasis supplied). In this view, the impugned order of the learned Single Judge and the appellate decision of the Division Bench appointing DIG, CBI to inquire into the matter would not be open to attack for want of sanction u/s 6 of the Act.
110. In the case of CBI through S.P., Jaipur v. State of Rajasthan and Anr. (supra), the Supreme Court considered the question as to whether a Magistrate in exercise of his power u/s 156(3) of the Criminal Procedure Code could direct the CBI to conduct investigation into an cognizable offence. It was observed as follows:
13. Section 5 of the Delhi Act enables the Central Government to extend the powers and jurisdiction of members of the Delhi Police Establishment to any area in a State, Section 6 of the Delhi Act says that:
6. Nothing contained in Section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union Territory or railway area, without the consent of the Government of that State.
A contention was made before us that when the State Government gives consent for CBI to investigate any offence within the area of the State it would be permissible for the Magistrate to direct the officer of CBI to conduct such investigation. What is envisaged in Sections 5 and 6 of the Delhi Act is not one of conferring power on a Magistrate to order CBI to conduct investigation in exercise of Section 156(3) of the Code.
14. True, powers of the High Court under Article 226 of the Constitution and of the Supreme Court under Article 32 or Article 142(1) of the Constitution can be invoked, though sparingly, for giving such direction to CBI to investigate in certain cases, (vide Kashmeri Devi v. Delhi Admn. and Maniyeri Madhavan v. Sub-Inspector of Police). A two-Judge Bench of this Court has by an order dated 10.03.1989, referred the question whether the High Court can order CBI to investigate a cognizable offence committed within a State without the consent of that State Government or without any notification or order having been issued in that behalf u/s 6 of the Delhi Act.
111. In the case of Gudalure M.J. Cherian and Ors. v. Union of India and Ors. (supra), the petition was filed under Article 32 of the Constitution of India and PIL by some prominent Christians seeking a direction that the investigation of a case be entrusted to CBI and the case be transferred from the Sessions Judge, Moradabad (U.P.) to Sessions Judge, Delhi. The petition was at a stage when the investigation had been completed and the chargesheet had already been submitted to the Court. The Supreme Court disposed of the writ petition with the following observations:
7. It is not necessary for us to go into various facts and circumstances mentioned by the petitioners in the writ petition in support of their apprehensions that the investigation in the case by the police was not fair and the victims are not likely to get justice by the authorities in the State of Uttar Pradesh. Four accused persons have been arrested in connection with the crime and the trial against them is likely to commence. The investigation having been completed by the police and chargesheet submitted to the Court, it is not for this Court, ordinarily, to reopen the investigation specially by entrusting the same to a specialised agency like CBI. We are also conscious that of late the demand for CBI investigation even in police cases is on the increase. Nevertheless – in a given situation, to do justice between the parties and to instill confidence in the public mind-it may become necessary to ask the CBI to investigate a crime. I only shows the efficiency and the independence of the agency.
From the aforesaid observations it becomes apparent that the High Court has the power to entrust to the CBI in a given situation to do justice between the parties and to instil confidence in the public mind. (emphasis supplied).
113. From the observations made in the case of Sampat Lal and Ors. (supra), it would appear that when a direction is given by the Court in an appropriate case consent envisaged u/s 6 of the Delhi Special Police Establishment Act would not be a condition precedent for continuing with the CBI investigation. It has been categorically held that the decision of the Division Bench of this Court appointed DIG, CBI, to inquire into the matter, would not be open to attack for want of sanction u/s 6 of the Act.
114. Again in the case of Central Bureau of Investigation v. State of Rajasthan (supra), it has been reiterated that powers of the High Court under Article 226 of the Constitution of India can be invoked, though sparingly for giving directions to CBI to investigate in certain cases. We may, however, notice the judgments cited by the learned Advocate General. In support of the proposition that the High Court would have no power under Article 226 of the Constitution to direct the CBI enquiry in the absence of consent given by the State Government as required u/s 6 of the Delhi Special Establishment Act, 1946.
115. In the case of Delhi Judicial Service Association, Tis Hazari Court, Delhi (supra), the Supreme Court has held that no enactment made by Central or State Legislature can limit or restrict the power of this Court under Article 142 of the Constitution to do complete justice. This case does not lay down that the High Court will not have the necessary power under Article 226 to direct the CBI enquiry in the absence of consent of the State Government.
116. We find merit in the submission of the learned Advocate General that the power enjoyed by the Supreme Court under Article 142 is special and confined to the Supreme Court. It has been held by the Supreme Court that it is at an entirely different level and of a different quality as laid down in the case of Union Carbide Corporation (supra). At the same time, it must be noticed that in these cases powers of the High Court under Article 226 of the Constitution were not under the consideration of the Supreme Court, therefore, we are unable to accept the submission of the learned Advocate General that the High Court would have no power to issue a direction to the CBI for investigation. As, at present, the law laid down by the Supreme Court in the case of Sampat Lal and Ors. (supra) is binding on the High Court.
117. We may consider as to whether this Court can give the direction to continue to the CBI enquiry, even without the consent of the State Government in view of the reference of this question of a Larger Bench in Civil Appeal No. 6249-6250 of 2001. The aforesaid reference which was made on 8th November, 2006 raises a question of Jaw of great public importance which is as under:
Whether the Court can order the CBI established under the Delhi Special Police Establishment Act, 1946, to investigate a cognizable offence which is said to have taken place within the territory of a State without the consent of that State Government.
118. In that case, the Supreme Court has noticed that earlier also the same ** question has been referred to a Larger Bench in a reference made in Writ Petition (Crl) Nos. 531-36 of 1988 (Haryana Mahila Sangathan and Ors. v. Union of India and Ors.). It is also noticed that the aforesaid matters were placed before the Constitution Bench. However, at the time of hearing, in all those matters it was conceded by the learned Counsel for the petitioners that the question of law involved in those matters is covered against them by judgment of the Supreme Court in the case of The Management of Advance Insurance Co. Ltd. Vs. Gurudasmal and Others, and in the case of State of Maharashtra and Others Vs. Uttamrao Rayala Nikam, . Thereupon the appeal and the connected matters including Writ Petition (Cri.) Nos. 531-36 of 1988 were dismissed. On perusal of these judgments the Supreme Court, however, came to the conclusion that the aforesaid judgments did not have any relevance to the question which have been referred to the Larger Bench. Therefore, the question of law has again been referred to a Larger Bench.
119. We are of the opinion that the pendency of the reference would not 1 debar this Court from deciding the question as to whether this is a fit case and direct the CBI to continue with the, investigation which was initially ordered on 15th March, 2007. Unless and until the question referred to a Larger Bench is considered and answered by the Supreme Court, the law as earlier laid down is binding on this Court. We find support for this view from a number of judgments of the different High Courts. In the case of Goodricke Group Ltd. and Anr. v. Agricultural Income Tax Officer, Calcutta Range-1 and Anr. 1984 Lab. IC 90), considering a similar question a Division Bench of this Court has observed as follows:
Mr. Prakasha Rao, the learned Standing Counsel for the Corporation, however, on the strength of the observations made in the judgment of the Kerala High Court in M.M.T. Limited Kalamassery v. Labour Court, Ernakulam 1983(1) Serv. LJ. 20 : 1984 Lab. LC. 65, stated that the view expressed by the Supreme Court in L. Robert D’Souza v. Executive Engineer, L. Robert D’souza Vs. Executive Engineer, Southern Railway and Another, has now been referred to a Larger Bench and, therefore, we may await the decision of the Larger Bench of the Supreme Court, such a representation did not find favour with the Kerala High Court and in our opinion rightly so. Merely because a particular view taken by the Supreme Court which constitutes the of the land is sought to be examined again in some cases and the same is referred to a Larger Bench, the law as laid down does not cease to be binding on this Court. In view of the law of the land as it stands declared in L. Robert D’Souza v. Executive Engineer, L. Robert D’souza Vs. Executive Engineer, Southern Railway and Another, , we must hold that the termination of the services of the petitioners in these cases constitutes retrenchment and for failure to comply with the requirements of Section 25F of the Industrial Disputes Act such termination orders cannot be sustained. The impugned orders are accordingly quashed and the writ petitions are allowed, but in the circumstances, without costs.(E.S).
(Emphasis supplied)
120. Again in the case of Basudev Khadanga Vs. Union of India (UOI) and Others, , the Division Bench of the Orissa High Court has held that “a decision of the Supreme Court, till it is altered by it, is binding between the parties and its effect cannot be whittled down because the matter was under re-consideration before the Supreme Court.” In the case of State of Bihar v. Ranchi Zila Samta Party and Anr. (supra) the Supreme Court was considering the appeals by special leave filed by the State of Bihar against the judgment dated 11.03.1996 of the Division Bench of the Patna High Court in CWJC No. 459/96 and batch. It was agreed by ail the Counsel that an in-depth investigation is required to be made. The only controversy between Counsels on either side is whether the High Court, in exercise of its power under Article 226, could take the investigation away from the State police and entrust it to the Central Bureau of Investigation (CBI). It was observed that the parameters of the power of the High Court under Article 226 of the Constitution to direct an investigation by the CBI, though without the consent of the State concerned, is the subject-matter of a reference pending consideration of a Constitution Bench of five-Judges of this Court. (This is in WPs Nos. 531-36 of 1985 by order dated 10.03.1989). It was further noted that therefore, the frontiers of the power of the High Court under Article 226 to give directions to the CBI to investigate into offences without the State’s consent, are already before this Court and shall be gone into.
121. Considering the facts and circumstances of that case, the Supreme Court has observed as follows:
The only question then is whether this is a fit case for our interference under Article 136 of the Constitution? The exercise of the power under Article 226 of the Constitution in a Public Interest Litigation was not to give an}’ advantage to a political party’ or group of people, as apprehended by the Counsel for the appellants. It was also not to cast a slur on the State police. It was done to investigate corruption in public administration, misconduct by the bureaucracy, fabrication of official records, and misappropriation of public funds by an independent agency that would command public confidence. We are, therefore, of the opinion that the direction given by the High Court appears to be just and proper and calls for no real interference.
122. The SLP was in fact disposed of with the direction that the investigation by the CBI would continue. Even the enquiry entrusted to the State Police was transferred to the CBI. Further direction was issued to the CBI to submit periodic reports on the progress of the investigation to the Chief Justice of the Patna High Court. Parties were given liberty to approach the Chief Justice for further directions.
123. We have already noticed that the reference made earlier, by order dated 10.03.1989 had already been answered on the consent having been given by the learned senior Counsel for the petitioners in that case. Subsequently, the matter has been again referred in Civil Appeal Nos. 6249-6250 of 2001. Even in that case the SLP had been filed against the judgment of a Division Bench of this Court directing the State Investigating Agency to hand over the further investigation to CBI. However, while making the reference the direction issued by the Division Bench of this Court was not stayed. In the case of Shashikant v. Central Bureau of Investigation and Ors., (supra) the Supreme Court has clearly held that when a reference of a vital question of law is made to a Larger Bench all other proceedings pending in other Courts do not come to a grinding halt. In the case of Mohammed Anis (supra) the Supreme Court has observed as follows:
True it is, that a Division Bench of this Court made an order on March 10, 1989 referring the question whether a Court can order the CBI, an establishment under the Delhi Special Police Establishment Act, to investigate a cognizable offence committed within a State without the consent of that State Government or without any notification or order having been issued in that behalf. In our view, merely because the issue is referred to a Larger Bench everything does not grind to a halt….
124. A conspectus of the facts narrated above would clearly show that there was no peace in the Nandigram area since September, 2006. It is the pleaded case of the State that apprehension of the people of Nandigram existed since November, 2006. The peace meetings that were held were fruitless. The police was incapacitated in the area. All rights, fundamental and other, were lost by those who were evicted from their houses. According to the learned Advocate General this is a unique case where the action of the police cannot be and should not be judged on the touchstone of the normal standards of restraint which the police personnel are required to follow in maintaining law and order in normal circumstances. An area of 65 kilometers in and around Nandigram had become literally beyond civilization. Law and order was non-existent. The area was inaccessible. Roads have been dug up. Every kind of major violent crime such as murder arson, rape had been committed. Yet, none of these cases could be investigated as the police was unable to enter the disturbed area. The admitted facts would lead to the irresistible conclusion that there was rampant violation of fundamental rights in the Nandigram area. It was not possible for either the police or the administration to enter this area. Basic rights could not be exercised by the common people. People who had to desert their houses were forced to live in camps. It was categorically pleaded that people who forcibly ousted from their houses and were living in relief camps, could not be assisted to return to their homes.
125. From the pleadings it emerges that there were inconsistencies, contradictions and misinformation galore in the Nandigram area from August, 2006 onwards. Statements were being made by high dignitaries such as Laxman Seth, Member of Parliament and Chairman of HDA that the lands would be acquired at Nandigram. Equally, emphatically it was being stated by the Chief Minister of West Bengal that no land would be taken up from unwilling persons as a result of this actions people of Nandigram became agitated. They had organized themselves to demonstrate against the land acquisition. It is accepted by all the Counsel that great deal of damage was done to public roads and other modes of communication. Violent incidents and all crimes were being committed in the area with impunity. Outsiders musclemen with arms and ammunitions were freely roaming around in the camps which had been orgainsed by CPI(M). There were continuing shooting matches between the different groups. Complaints lodged with the police were attended to. Surprisingly, at the time of Madhyamik Pariksha (Secondary Education, 2007) was held from 22nd of February to 15th of March, 2007. There was peace and tranquillity in the area. Therefore, it would appear that it was not an impossibility to achieve peace provided all the leaders of the political parties had taken a conscious decision. It appears that different political parties were pursuing different agendas. The meeting dated 19.02.2007 which was held by the District Magistrate (East Midnapore) quite clearly shows that the police was present in Nandigram in large numbers. On paper decisions have been taken by all the political parties to restore peace and normalcy in the area. But the resolutions adopted in the all party meeting dated 10.03.2007 depicted the actual situation. In resolution No. 3 it is quite categorically observed that in spite of the decision taken in the last meeting to restore peace and normalcy it could not be done due to the non-co-operation of the representatives of all the political parties. Whilst all this was doing on the police hardly took any action to restore normalcy. It was only on 12th of March that decision was taken in a meeting under the leadership of Arun Gupta, IG, (Western Range) to restore peace at Nandigram. Large contingent of police force, as noticed earlier, in this judgment was brought from outside the district. Fearing and anticipating the violence the local member of the Legislative Assembly, Sri Suvendu Adhikari sent a fax message to the Chief Minister. The exact message has been reproduced in the earlier part of the judgment. A perusal of the same would show that the M.L.A. apprehended that panic will be created for the common people of Nandigram if police start action which is reported to be started tomorrow. The plea of the M.L.A. did not yield any results and the police moved into Nandigram on 14th of March as narrated earlier. This inaction on the part of the police and the administration has raised a number of very important questions which have/been highlighted by the learned Counsel for the parties.
126. Learned Counsel for the petitioners had categorically submitted that the role of the politicians and the power brokers would have to be investigated. According to the learned Counsel violence did not certainly erupt on 14th of March. Admittedly, there had been unrest in the area since September, 2006. According to the learned Counsel deliberately the situation was permitted to deteriorate that according to the learned Counsel, is a reason by the assistance of the Central Forces was not summoned. They have squarely accused the local M.P. of wanting to teach the villagers a lesson. We are of the opinion, that the apprehensions expressed by the learned senior. Counsel cannot be brushed under the carpet. It is a matter of record that the local M.P. contradicted the statements made by the Chief Minister. It is also in the resolutions of the various meetings held under the Chairmanship of the District Magistrate that the political parties did not actually co-operate in the effort to restore peace in Nandigram.
127. Mr. Amjad Ali has also vividly narrated the factual situation which we have noticed in the earlier part of the judgment. We are of the opinion that the questions raised by Mr. Ali need to be examined thoroughly. The reasons underlying the suspicions and apprehensions of the people of Nandigram have to be unearthed. The allegations of interference by the political activists of different political parties have to be investigated. The role played by different individuals has to be seen. Mr. Ali had very emphatically submitted that there was a common perception in the area that at the time when rallies and processions were held, rank and file of the police were being utilized as a private army commanded by the local M.P. and other CPI(M) leaders. The investigation would also be required about the registration of false cases against the villagers,
128. According to all the learned Counsel for the petitioners, the cases were registered with oblique motive of providing a cover of legality for the illegal activities of police. It is not disputed even by the State in its affidavits that during the period of disturbances all manner of crimes had been committed. Therefore, we are of the opinion, that these allegations cannot simply be ignored on the plea that the police was only performing its duty.
129. Mr. K.K. Moitra has also strenuously argued that State has violated ‘Article 21 of the Constitution of India. People who were attacked were not terrorists. They are very simple farmers who were living below the poverty line. We are of the opinion, that the cry for justice made on behalf of these hapless people of Nandigram cannot simply be ignored by the Court. Any amount of legal justification, in our opinion, for opening fire on innocent farmers cannot be anything other than breach of fundamental rights guaranteed under Article 21 of the Constitution of India. Possession of legal power by itself would not justify the exercise of the power. In order to be legally sustainable the exercise of power would have to satisfy the requirements of Articles 14, 19 and 21 of the Constitution of India.
130. It is, therefore, absolutely necessary to unearth the bitter truth. Otherwise, the promise of rule of law as provided under the Constitution of India would remain only a paper promise. This apart, we may notice here that by order dated 15th of March, 2007 we had directed the commencement of the CBI inquiry. A preliminary inquiry report was submitted to this Court. Immediately on the passing of the order the Chief Minister had made a statement in the Assembly welcoming the order passed by this Court. This statement is now sought to be explained away by the learned Advocate General as the “personal opinion” of the Chief Minister. We are unable to accept the aforesaid submission. The people of this country are entitled to rely on the statements made by such high dignitaries on the floor either of the Parliament or the Legislative Assembly. Any other opinion would in all probability lead to anarchy and chaos which is an antithesis of the concept of rule of law.
We are, therefore, satisfied that in the facts and circumstances of this case, it would be necessary to have the entire fact situation investigated by a thorough CBI investigation.
131. As noticed earlier, 14 innocent persons had lost their lives, 162 individuals were injured. In such circumstances it is absolutely necessary to find out the specific orders that may have been given. By whom the order was given? What were the alternative methods of dispersing the unlawful assembly used before the extreme measure to open fire was adopted? Who was the individual Police Officer who had given the permission to fire upon the crowd? Who were the identified targets? It is only on answers to those questions being provided that the Court would be in a position to take an informed decision as to whether the action of the State to open fire was in accordance with law.
132. We have also earlier noticed the submissions of learned Counsel for the petitioners that the whole situation in Nandigram had been contrived. On the other hand learned Advocate General had submitted that police firing was resorted to only as a last resort to restore peace in the area. In our opinion, there seem to be very large number of unanswered questions with regard to the attitude adopted by the State authority. Admittedly, it was known to the authorities that there was simmering discontent amongst the villagers, which had been caused directly by the proposal to acquire their land. It was also known to the authorities that basic rights could not be exercised by common people. In fact, the authorities had put a large number of refugees into relief camps. It was also known to the police that a portion of the CPI(M) have formed a tacit understanding with the agitators. In a passive way they had also extended their support to resist the policy of the Government for acquisition of land at Nandigram. The peace meetings held on numerous occasions had yielded no results. Criminal acts of violence including arson, rape and murder were rampant. The police was unable to investigate any of the 41 cases which had been registered. Yet, the State authorities did not feel it necessary to seek any assistance from any of the Central Forces. It would, therefore, be necessary for the State to disclose as to whether any informed decision had been taken not to seek the assistant of any Central Forces.
133. It is too late in the day to accept the submission that the orders issued by the executive, which lead to the death of 14 innocent persons, cannot be the subject-matter of judicial review. The allegation made is that police firing that erupted on 14th March, 2007 was a State sponsored terrorism. These allegations cannot simply be ignored by the High Court. In public proceedings the Court passes orders for the benefit of the general public for passing effective orders. The Court can examine the decision making process, which leads to a particular action of the State. Fundamental rights are guaranteed under Article 21 of the Constitution of India. These rights have been given a unique place in the scheme of the Indian Constitution. The fundamental rights have also been described as negative obligation of the State which does not permit encroachment on individual liberties except within the well defined limits of law. The object of fundamental rights is to foster an atmosphere which would be conducive to the fulfillment of the aims and objectives enacted in the Preamble of the Constitution of India. Indeed fundamental rights are so important that they occupy a unique place in all civilized societies. Part-IV of the Constitution contains the directive principles which are to be followed by the State to enable this country to fulfill the dream projected in the Preamble of the Constitution of India. Therefore any abrogation of the fundamental rights must be strictly in conformity with law validly enacted by a competent legislature. Therefore, the action of the State authorities in directing the police to open fire on the crowd that had gathered at Nandigram cannot be said to be beyond the pale of judicial review.
134. It is true that even fundamental rights can be regulated to achieve a greater public purpose. Therefore, the Courts would have to strike a balance between public goods and personal liberty, in judging the action of the State authorities. The balance can certainly be tilted in favour of the public good. But it cannot have the effect of curtailing the personal liberty to such an extent that the fundamental rights are rendered merely illusory. This view of ours will fund support from a number of judgments of the Supreme Court. The potent remedy of Public Interest Litigation has been evolved by the Courts to enable the judiciary to effectively protect fundamental rights. To accept the submission of the learned Advocate General, would be contrary to the established law of the land. At this stage, we may notice one or two landmark judgments of the Supreme Court in the field of Public Interest Litigation and locus standi.
135. In our opinion, the objection raised by the learned Advocate General is completely answered by the Constitution of India Bench judgment of the Supreme Court in the case of S.P. Gupta Vs. President of India and Others, . The Supreme Court in this case observed as follows:
17. It may therefore now be taken as well-established that where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any Constitutional or legal right or any burden is imposed in contravention of any Constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case of breach of any fundamental right of such person or determinate class of persons, in this Court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons. Where the weaker sections of the community are concerned, such as under-trial prisoners languishing in jails without a trial inmates of the Protective Home in Agra or Harijan workers in case in road construction in the Ajmer District who are living in poverty and destitution, who are barely eking out a miserable existence with their sweat and toil, who are helpless victims of an exploitative society and who do not have easy access to justice, this Court will not insist on a regular writ petition to be filed by the public spirited individual espousing their cause and seeking relief for them. This Court will readily respond even to a letter addressed by such individual acting pro bono publico. It is true that there are rules made by this Court prescribing the procedure for moving this Court for relief under Article 32 and they require various formalities to be gone through by a person seeking to approach this Court. But it must not be forgotten that procedure is but a handmaiden of justice and the cause of justice can never be allowed to be thwarted by any procedural technicalities. The Court would therefore unhesitatingly and without the slightest qualms of conscience cast aside the technical rules of procedure in the exercise of its dispensing power and treat the letter of the public minded individual as a writ petition and act upon it. Today a vast revolution is taking place in the judicial process; the theatre of the law is fast changing and the problems of the poor are coming to the forefront. The Court has to innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights and to whom freedom and liberty have no meaning. The only way in which this can be done is by entertaining writ petitions and even letters from public spirited individuals seeking judicial redress for the benefit of persons who have suffered a legal wrong or a legal injury or whose Constitutional or legal right has been violated but who by reason of their poverty socially or economically disadvantaged position are unable to approach the Court for relief. It is in this spirit that the Court has been entertaining letters for judicial redress and treating them as writ petitions and we hope and trust that the High Courts of the country will also adopt this pro-active, goal-oriented approach. But we must hasten to make it clear that the individual who moves the Court for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the cause of justice and if he is acting for personal gain or private profit or out of political motivation or other oblique consideration, the Court should not allow itself to be activised at the instance of such person and must reject his application at the threshold, whether it be in the form of a letter addressed to the Court or even in the form of a regular writ petition filed in Court. We may also point out that as a matter of prudence and not as a rule of law, the Court may confine this strategic exercise of jurisdiction to cases where legal wrong or legal injury is caused to a determinate class or group of persons or the constitutional or legal right of such determinate class or group of persons is violated and as far as possible, not entertain cases of individual wrong or injury at the instance of a third party, where there is an effective legal aid organization which can take care of such cases.
These observations, in our opinion, leave no manner of doubt that this Court would have the jurisdiction to grant the necessary relief to the victims of the families of the unfortunate persons who were killed in the police firms.
136. Again in the case of People’s Union for Democratic Rights and Others Vs. Union of India (UOI) and Others, , the Supreme Court observed as under:
Before we proceed to deal with the facts giving rise to this writ petition, we may repeat what we have said earlier in various orders made by us from time to time dealing with Public Interest Litigation. We wish to point out with all the emphasis at our command that Public Interest Litigation which is a strategic arm of the legal aid movement and which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity, is a totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two litigating parties, one making claim or seeking relief against the other and that other opposing such claim or resisting such relief. Public Interest Litigation is brought before the Court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate public interest which demands that violations of Constitutional or legal rights of large number of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and undressed. That would be destructive of the Rule of Law which forms one of the essential elements of public interest in any democratic form of Government.
137. Disapproving the attitude of the State raising preliminary objections to the maintainability of writ petition in Public Interest Litigation in the case Bandhua Mukti Morcha Vs. Union of India (UOI) and Others, , the Supreme Court observed as follows:
…we find it incomprehensible that the State Government should urge such a preliminary objection with a view to stifling at the threshold an enquiry by the Court as to whether the workmen are living in bondage and under inhuman conditions.
…The Government and its officers must welcome Public Interest Litigation, because it would provide them an occasion to examine whether the poor and the down-trodden are getting their social and economic entitlements or whether they are continuing to remain victims of deception and exploitation at the hands of strong and powerful sections of the community and whether social and economic justice has become a meaningful reality for them or it has remained merely a teasing illusion and a promise of unreality, so that in case the complaint in the Public Interest Litigation is found to be true, they can in discharge of their constitutional obligation root out exploitation and injustice and ensure to the weaker sections their rights and entitlements. When the Court entertains Public Interest Litigation, it does not do so in a caviling spirit or in a confrontational mood or with a view to tilting at executive authority or seeking to usurp it, but its attempt is only to ensure observance of social and economic rescue programmes, legislative as well as executive, framed for the benefit of the have-nots and the handicapped and to protect them against violation of their basic human rights, which is also the Constitutional obligation of the executive. The Court is thus merely assisting in the realisation of the Constitutional objectives.
138. In the case of Khatri and Others Vs. State of Bihar and Others, , the Supreme Court again observed as follows:
7…If an officer of the State acting in his official capacity threatens to deprive a person of his life or personal liberty without the authority of law, can such person not approach the Court for injuncting the State from acting through such officer in violation of his fundamental right under Article 21? Can the State urge in defence in such a case that it is not infringing the fundamental right of the petitioner under Article 21, because the officer who is threatening to do so is acting outside the law and therefore beyond the scope of his authority and hence the State is not responsible for his action? Would this not make a mockery of Article 21 and reduce it to nullity, a mere rope of sand, for, on this view, if the officer is acting according to law there would ex concessionis be no breach of Article 21 and if he is acting without the authority of law, the State would be able to contend that it is not responsible for his action and therefore there is no violation of Article 21. So also if there is any threatened invasion by the State of the fundamental right guaranteed under Article 21, the petitioner who is aggrieved can move the Court under Article 32 for a writ injuncting such threatened invasion and if there is any continuing action of the State which is violative of the fundamental right under Article 21, the petitioner can approach the Court under Article 32 and ask for a writ striking down the continuance of such action, but where the action taken by the State has already resulted in breach of the fundamental right under Article 21 by deprivation of some limb of the petitioner, would the petitioner have no remedy under Article 32 for breach of fundamental right guaranteed to him? Would the Court permit itself to become helpless spectator of the violation of the fundamental right of the petitioner by the State and tell the petitioner that though the Constitution has guaranteed the fundamental right to him and has also given him the fundamental right of moving the Court for enforcement of his fundamental right, the Court cannot give him any relief….
8…When the Court trying the writ petition proceeds to inquire into the issue whether the petitioners were blinded by police officials at the time of arrest or whilst in police custody, it does so, not for the purpose of adjudicating upon the guilt of any particular officer with a view to punishing him but for the purpose of deciding whether the fundamental right of the petitioners under Article 21 has been violated and the State is liable to pay compensation to them for such violation….
139. Again the same sentiment is reiterated by the Supreme Court in the case of Peoples’ Union For Democratic Rights (supra) which is as follows:
6. There has been no dispute that as a result of the police firing 21 people died and several others were injured. The heirs and relations of a few of the dead people had been compensated by the State to the tune of Rs. 10,000 as found from the record. No justification has been indicated as to why the said compensation has not been given in every case of death or injury. It is a normal feature of which judicial notice can be taken that when such unfortunate consequences emerge even in police firing, the State comes forward to give compensation. Mr. Jaya Narayan, for the State candidly stated before us that it is not the intention of the State to deprive the relatives of some of the victims who succumbed to the injuries sustained by police firing from benefit of compensation. Ordinarily in the case of death compensation of Rs. 20,000 is paid and we see no reason as to why the quantum of compensation should be limited to Rs. 10,000. We may not be taken to suggest that in the case of death the liability of the wrongdoer is absolved when compensation of Rs. 20,000 is paid. But as a working principle and for convenience and with a view to rehabilitating the dependants of the deceased such compensation is being paid. We direct that:
(1) Without prejuidice to any just claim for compensation that may be advanced by the relations of the victims who have died or by the injured persons themselves, for every case of death compensation of Rs. 20,000 and for every injured person compensation of Rs. 5,000 shall he paid. Where some compensation has already been paid, the same may be adjusted when the amount now directed is being paid. These payments be made within two months hence….
140. For the reasons stated above we hold that:
1. The action of the police department to open fire at Nandigram on 14.03.2007 was wholly unconstitutional and cannot be justified under any provision of the law.
2. The Court was justified in taking suo motu notice of the wholly indefensible incident of police firing, at Nandigram on 14.03.2007, on the basis of the Newspaper reports; and the statement made by His Excellency, the Governor of West Bengal as reported in the newspaper “Hindustan Times”.
3. The PIL instituted by the Bar Association of High Court Calcutta and the other petitions are maintainable.
4. This Court in exercise of its jurisdiction under Article 226 of the Constitution of India would have the power to direct the CBI to hold enquiry in any particular case or matter. Consent of the State Government u/s 6 of the Delhi Special Establishment Act, 1946 would not be required, when the order for CBI enquiry is passed by the High Court in exercise of its jurisdiction under Article 226/227 of the Constitution of India. Till the reference to the Larger Bench in Civil Appeal Nos. 6249-6250 of 2001 is decided this Court is bound by the law as already declared by the Supreme Court in the case of Sampat Lal and Ors. (supra). Even otherwise in this case consent has been given by the Chief Minister in the statement made in the West Bengal State Legislative Assembly on 15th of March, 2007. Therefore, the objection raised by the Advocate General is not maintainable.
5. The action of the police cannot be protected or justified on the ground of sovereign immunity.
6. The action of the police cannot be justified even under the provisions of Criminal Procedure Code; The Police Act, 1861 or The Police Regulations, Bengal, 1943.
7. Regulation 155(b) is ultra vires Articles 14, 19 and 21 of the Constitution of India.
141. 14 innocent persons have been killed in the police firing on 14th of March, 2007. As stated by us in the preceding paragraphs hereinabove 13 persons who have died as a result of indiscriminate police firing have actually been identified. Even their addresses have been given in the earlier pan of the judgment. Only the 14th person who died has not been identified. 162 persons have been injured. Details of 80 such persons have been given in the affidavit filed by the petitioners. We have also noticed above the details of some of the women who had been raped. We, therefore, direct the State of West Bengal to pay immediate compensation to the relations of the victims who have died or were injured and the victims of rape as follows:
In Civil Writ Petition No. 8596(W) of 2007, the prayer of the petitioners is to pay adequate compensation to the victims of police firing on 14th of March, 2007, in view of the acts of omission and commission on the part of the State Government and its officers and its failure to protect the people of Nandigram and its surrounding areas. The petitioners have claimed compensation at the rate not less than Rs. 10 (ten) lakhs to the families of each of those who were killed. No figure has been mentioned with regard to the injured persons. However, a prayer has been made for payment of compensation, which shall not be less than Rs. 8 (eight) lakhs in case of rape victims and adequate compensation in other cases of molestation and sexual assault. Following the guidelines laid down by the Supreme Court in the case of Peoples’ Union For Democratic Rights (supra),
(1) we direct the State of West Bengal to pay to the victims of the deceased as a result of the indiscriminate police firing on 14th of March, 2007 immediate compensation in the sum of Rs. 5 (five) lakhs each.
(2) We further direct the State Government to pay immediate compensation to the persons who were injured and whose particulars have been given in the pleadings sum of Rs. not less than 1 (one) lakh each.
(3) We further direct the State Government to pay compensation to the victims of rape who have been duly identified in the pleadings a sum of Rs. 2 (two) lakhs each.
142. We make it clear that the compensation awarded above is without prejudice to the legal rights of the victims to claim higher compensation by taking proceedings in accordance with law. The payments shall be made within a period of one (1) month from today.
143. During the course of hearing of these matters interim directions had been given on a number of occasions. It was, however, brought to the notice of this Court that the State Government had miserably failed to carry out the directions. Even in cases where the directions were implemented it was done in a manner which resulted in little benefit to the segment of the population which was sought to be benefited. We, therefore, direct the State Government to implement all the directions issued by this Court on 15th of March, 2007, 2nd of May, 2007 and 3rd of May, 2007.
144. In view of the clear enunciation of law as noticed above, we have no hesitation in directing the CBI to continue with inquiry as directed by the order dated 15th of March, 2007. The CBI is directed to conduct a thorough and detailed investigation and submit a comprehensive report to this Court. The report should inter alia clearly set out the crimes that have been committed against any individual; the victims should be identified; the offenders should likewise be identified. Thereafter, the report should -set out as to whether any departmental action or criminal proceedings have been initiated against any individual or officer(s) who have transgressed any provision of law. The CBI is further directed to take necessary steps before the appropriate forum/Court of Law, if necessary i.e., registration and initiation of criminal proceedings, if necessary, in accordance with law.
145. We further make it clear that all these steps should be taken by the CBI including such investigation and the filing of such report within a period of a month from date. These directions shall be in continuation of the directions given on the earlier occasions.
Pinaki Chandra Ghose, J.
146. I agree.
Later:
147. At this stage learned Advocate General has made a prayer that the operation of the judgment should be stayed for a period of three weeks. We find no reason to stay the operation of the order. We, therefore, decline the prayer.
148. Let a xerox plain copy of this judgment and order duly countersigned by the Assistant Registrar (Court) be given to the learned Advocate General, Mr. Sakti Nath Mukherjee, Mr. Kalyan Bandopadhyay, Mr. Idris Ali and Mr. Ranjan Roy, learned Counsels for the parties on usual undertaking.
(2007) 4 CalHCN 842 : (2008) 1 CALLT 42
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Punjab and Haryana High Court Bar Association, Chandigarh through its Secretary Vs. State of Punjab and others, AIR 1994 SC 1023 : (1994) CriLJ 1368 : (1993) 6 JT 650 : (1993) 4 SCALE 636 : (1994) 1 SCC 616 : (1993) 3 SCR 915 Supp : (1994) 1 UJ 199
Fomento Resorts and Hotels Ltd. Vs. Gustavo Ranato Da Cruz Pinto and Others, AIR 1985 SC 736 : (1985) 1 SCALE 394 : (1985) 2 SCC 152 : (1985) 2 SCR 937 : (1985) 17 UJ 729
Union of India and Others Vs. Lt. Gen. Rajendra Singh Kadyan and Another, AIR 2000 SC 2513 : (2000) 8 JT 276 : (2000) 5 SCALE 327 : (2000) 6 SCC 698 : (2000) SCC(L&S) 797 : (2000) 1 SCR 722 Supp : (2000) 2 UJ 1254 : (2000) AIRSCW 2692 : (2000) 5 Supreme 281
AIR India Vs. Nergesh Meerza and Others, AIR 1981 SC 1829 : (1981) LabIC 1313 : (1981) 2 LLJ 314 : (1981) 3 SCALE 1275 : (1981) 4 SCC 335 : (1982) 1 SCR 438 : (1981) 2 SLJ 349
State of Andhra Pradesh Vs. Challa Ramkrishna Reddy and Others, (2000) 2 ACC 18 : (2001) ACJ 1014 : (2000) 6 JT 334 : (2000) 4 SCALE 471(2) : (2000) 4 SCALE 471 : (2000) 5 SCC 712 : (2000) 2 UJ 1267
State of Bihar and another Vs. Ranchi Zila Samta Party and another, AIR 1996 SC 1515 : (1996) CriLJ 2168 : (1996) 3 JT 751 : (1996) 3 SCALE 236 : (2003) 12 SCC 235 : (1996) 3 SCR 663 : (1996) 2 UJ 138
Gudalure M.J. Cherian and Others Vs. Union of India (UOI) and Others, (1992) 1 Crimes 2 : (1991) 4 JT 535 : (1991) 2 SCALE 1305 : (1992) 1 SCC 397 : (1991) 3 SCR 251 Supp
Delhi Judicial Service Association, Tis Hazari Court, Delhi Vs. State of Gujarat and others, AIR 1991 SC 2176 : (1991) CriLJ 3086 : (1991) 3 Crimes 232 : (1991) 3 JT 617 : (1991) 2 SCALE 501 : (1991) 4 SCC 431 : (1991) 4 SCC 406 : (1991) 3 SCR 936
N. Nagendra Rao and Co. Vs. State of Andhra Pradesh, AIR 1994 SC 2663 : (1994) 5 JT 572 : (1994) 3 SCALE 977 : (1994) 6 SCC 205 : (1994) 3 SCR 144 Supp
State of Maharashtra and Others Vs. Uttamrao Rayala Nikam, (1994) 2 LLJ 815 : (1994) 2 SCC 116
Ajay Kumar Singh and Others Vs. State of Bihar and Others, (1994) 2 JT 662 : (1994) 2 SCALE 302 : (1994) 4 SCC 401 : (1994) 3 SCR 57 : (1994) 2 UJ 689
Ram Saran Vs. I.G. of Police, CRPF and Others, AIR 2006 SC 3530 : (2006) 108 FLR 1171 : (2006) 2 JT 267 : (2006) 2 SCALE 131 : (2006) 2 SCC 541 : (2006) SCC(L&S) 351 : (2006) 1 SCR 1102 : (2006) 2 SLJ 408 : (2007) AIRSCW 1011 : (2006) AIRSCW 740 : (2006) 1 Supreme 633
Punjab and Haryana High Court Bar Association Vs. State of Punjab and Others, (1996) 5 AD 45 : (1997) 10 JT 502 : (1996) 4 SCALE 416 : (1996) 4 SCC 742 : (1996) 2 SCR 787 Supp : (1996) 2 UJ 194
Basudev Khadanga Vs. Union of India (UOI) and Others, AIR 1973 Ori 136
P.V. Vijayaraghavan and Others Vs. C.B.I. and Another, (1984) CriLJ 1277
Ratnakar Vishwanath Joshi and Others Vs. Life Insurance Corporation and Others, (1975) 1 LLJ 501
Pancham Lal Vs. Dadan Singh, (1979) CriLJ 1018