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PETITIONER: A.K. SINGH AND ORS.

       Vs.

RESPONDENT: UTTARAKHAND JAN MORCHA AND ORS.

DATE OF JUDGMENT:       13/05/1999

BENCH: K.T.Thomas, D.P.Mahapatra, U.C.Banerjee

JUDGMENT:

THOMAS,J.

     Leave granted.

     There  was  a  stir  in support of the  demand  for  a separate  State  of Uttarakhand comprising of certain  hilly regions  of  the State of U.P.  and some other  areas.   The stir  collected momentum when the State Government issued  a notification   in   1994  pertaining   to   reservation   in educational institutions based on region-wise domicile.  The agitationists  fixed  up the Gandhi Jayanti day in 1994  for staging  a public rally at New Delhi for the twin  objective of  protesting  against  the notification and to  press  the demand  for  the  separate State.  The  administration  took stern  measures to resist the protestors march towards  the National  Capital as the officials claimed to have  received secret  information that the proposed rallysts were carrying lethal weapons in violation of the prohibitory orders issued by  the  Government and might create serious law  and  order situation.   The confrontation which ensued had resulted  in lot  of blood-shed including loss of many lives,  infliction of  injuries  on persons belonging to both sides,  outraging the modesty of women ranging to ravishments.

     An   association   styling   itself  as   Uttarakhand Sangharsh  Samity  (for  short the Samity) moved  a  writ petition  in  the  High  Court   of  Allahabad  (before  the Allahabad  Bench) on 6-10-1994, for different directions  to be  issued to the authorities to meet the consequence of the said  confrontation.   A  Division Bench of the  High  Court issued  certain interim directions on 7-10-1994 one of which was to the Central Bureau of Investigation (CBI for short) to   enquire   into  the   allegations  of   human   rights violations.   The substance of the aforesaid directions  is extracted below:

     Thus,  this  Court  calls upon  the  Home  Secretary, Government of India and the Central Bureau of Investigation, through  its  Director  General, by a writ of  mandamus,  to execute  the  investigation  on  the  incidents  which  have happened  in  the regions of Garhwal and Kumaun, between  17 June  1994  (the date of issue of the first  order  securing reservations  in  educational   institutions  including  its applicability  to these regions) and until the investigation

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is  determined.   The  investigation will also  include  the incidents narrated in this petition in the towns of Khatima, Mussoorie,  Dehradun and near Muzaaffarnagar.  The scope  of the  enquiry by the Central Bureau of Investigation, on  its discretion,  will  not  remain   curtailed  to  these  towns relating  to deaths and injuries and molestation of women by police.

     But,  the investigation will be confined to:  (a)  the agitations  in  the  regions of Garhwal and Kumaun,  and  to include the Muzafarnagar incident, (b) the matters connected with the agitations for Uttarakhanad only, (c) consequential detentions   of  the  agitationists,   (da)  the   agitators detained, (e) details of injuries, deaths and molestation of women, and (f) damage to property, as a consequence of these agitations within the aforesaid regions.

     The  CBI  took up investigation pursuant to  the  said directions and laid charge-sheet against certain officers on 19-1-1995  for  offences under Sections 109 and  120-B  read with  Sections  341  and  342  of  the  Indian  Penal  Code. Sanction  of the State Government was obtained for launching prosecution  in  respect  of those offences.   Some  of  the accused who were arrayed in the said charge-sheet filed Writ Petitions Nos.3463 and 3515 of 1995 before the Lucknow Bench of the High Court of Allahabad, in challenge of the validity of  the  sanction order issued by the State  Government  for prosecuting them.

     On  9-2-1996  the Division Bench of the High Court  of Allahabad  (Ravi  S.   Dhawan   and  A.B.   Srivastava,  JJ) disposed  of the first mentioned writ petition filed by  the Samity  holding,  inter  alia,  that   no  sanction  of  the Government  is  required  under Section 197 of the  Code  of Criminal  Procedure  (for short the Code) for  prosecuting the  officials as for any of the offences committed by  them while  resisting  the  rallysts.  In view of  the  aforesaid stand adopted by the Allahabad Bench of the High Court, Writ Petitions  3463  and 3515 of 1995 were dismissed by  Lucknow Bench  of  the  High Court on the premise  that  those  writ petitions have become infructuous.

     SLPs  were  filed  by  the  Union  of  India  and  the Government  of  U.P.   as  well as  some  of  the  aggrieved officials in challenge of the judgment dated 9-2-1996.  SLPs are  also filed against the judgment by which writ petitions were  dismissed  by  the  Lucknow  Bench  as  having  become infructuous.

     We  are  told  that  the   accused  arraigned  in  the charge-sheet  filed by the CBI on 19-1-1995 were  discharged by   the  trial  court  subsequently.    If  that   be   so, SLP(Criminal)  No.1810  of 1996 and SLP (Civil) No.12485  of 1996  which  were filed against the judgment of the  Lucknow Bench must be treated to have become infructuous.  We do so. However,  learned  counsel  for   the  petitioners   therein expressed  apprehension  that the order of discharge may  be set  aside  and  the  accused   therein  may  have  to  face prosecution.  A revision petition is pending before the High Court  in challenge of the aforesaid discharge order.  It is submitted  before us that in case the order of discharge  is set  aside  for any reason, dismissal of the  aforesaid  two SLPs  should not debar the petitioners from challenging  the validity  of the sanction order.  We preserve the said right

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of the petitioners concerned for challenging the validity of the  sanction  if  such a contingency as  apprehended  would arise in future.

     The  Judgment  under attack delivered by the  Division Bench of the Allahabad High Court dated 9-2-1996 consists of a  lot of directions.  Both the judges of the Division Bench wrote separate judgments, each of them is voluminous in size and  in  the  end  the directions  were  catalogued  by  the Division Bench under 19 heads as per the common judgment.

     We  propose to skip major portion of the judgments  as all the learned counsel who appeared for the parties in this Court were unanimous in expressing that a large chunk of the judgments  contains  unnecessary deliberations  without  any nexus with the points in controversy.  We too share the view expressed  by  both  sides.   It  is  unfortunate  that  the judgments  under  challenge contain a lot of  rigmorale  and learned  Judges  could  have  focussed on  the  core  issues without  niggling on academic subjects.  Shri D.D.   Thakur, learned  counsel  took  strong objection  to  the  following observations made by Dhawan, J:

     This  court, of the cases which were brought in large scale violations of human rights have been occasioned at the hands of the respondents already named in the reports of the Central  Bureau  of Investigation and that these  violations have also partaken the nature of constitutional torts.  Only for  demonstrating for fulfillment of the promise formalised by the legislature of the Uttar Pradesh and under discussion with  the  Union  Government that the people of  Kumaon  and Garhwal should receive statehood the civil rights activities had   to  suffer  what  seemed   like  a  direct  attack  by functionaries of the government aimed at them as a class.

     Learned  senior  counsel  submitted  that  High  Court should  have  refrained from making such  observations,  and such  pre-judging  of the cases pending before the  criminal courts should have been averted.

     We  agree  with  the said submission  of  the  learned senior  counsel  that  learned judges  should  have  avoided making  observations  concerning matters which  are  pending consideration  by  subordinate courts.  The High  Court  did more than that.  Without trial, and even without considering the  evidence  which  may be adduced in the  cases,  learned Judges ordered the Government to pay Rs.10 lakhs each to the dependants  of  all the persons who died in  police  firing. Rs.10  lakhs each were given to the victims of  molestation, Rs.   Fifty thousand each for 398 persons who were  detained by the police.

     All  the  learned counsel made scathing attack on  the rationale  of  the High Court in fixing up such huge sum  as compensation  at a premature stage.  They contended that the High  Court while imposing such heavy liability on the State has  not made any attempt to discuss the relevant  questions which   are  to  be  answered   for  fixing   liability   of compensation  and  for  quantification  of  the  amount   of compensation.   On consideration we are satisfied that there is  ample substance in the contentions raised by the learned counsel  in  this  regard.   The direction  for  payment  of compensation  is  clearly unsustainable and is liable to  be

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vacated.  We are told that pursuant to the directions in the impugned  judgment amounts have been disbursed to all  those persons  who claimed it.  We, therefore, make it clear  that no  further amount need be paid as compensation pursuant  to the  judgment  of  the High Court but if any  sum  has  been disbursed  to claimants the State will not recover the  same from them.  We also make it clear that if any person has not made  his/her claim or has not received compensation despite making  a  claim  for  it, it will be  open  to  him/her  to approach  the competent Court for compensation in accordance with law.

     The  serious  criticism  made by the  learned  counsel against  the  direction issued by the High Court,  regarding fund  allotment  for  the development  of  certain  regions, cannot  be side stepped.  That direction is in the following lines:

     Damages  and  compensation for constitutional  wrongs committed subjecting injuries to the class of

     people of Kumaun and Garhwal for their only fault that they  were  securing  their civil rights  on  the  guarantee already  given  by  the  legislature, as  discussed  in  the judgment, the repairment to the people of Kumaun and Garhwal Divisions shall stand related to their population (5,926,146 :   Kumaun  2,943,199, Garhwal  2,982,947) in the equation of  a  rupee per month per person for a plan period of  five years  and  this compensation shall be invested amongst  the population  of Kumaun and Garhwal earmarked specifically for a  programme  for the upliftment of the woman;  50 paise  of this  reparation shall come from the State of Uttar  Pradesh and  the other 50 paise from the Union of India.  This would be in addition to the normal plan allocation which this area would  receive  as what the court is suggesting  is  damages beyond the normal allocation.  The details of the allocation will  be chalked out and formalised at a meeting which  will be  called  by  the  Commissioners  of  Kumaun  and  Garhwal representing:

     (i)  Members of Parliament of the area:  (ii)  Members of  the  Legislative  Assembly of the area,  and  (iii)  the District Magistrates of the district concerned.

     The  magnitude  of the financial burden for  complying with  the said direction has been approximately estimated as amounting  to  several crores of rupees.  The money  has  to come  out  of State coffers.  A criticism made against  such direction  is that learned Judges of the High Court did  not take  into  account  the  financial capacity  of  the  State Government,  nor its resources for making up the said amount nor  the  priorities to be honoured by the State  Government nor  even the legislative mandates involving State  funding, while ordering the Government to incur such huge expenditure of a recurring nature.

     This  is not a case where the High Court was  ordering compensation  to one individual or even to a limited  number of  persons  de  horse  its   legal  liability  enjoined  by statutory   provisions.   For  Kumaun   region   the   State Government  will have to raise a very substantial amount  of about  36  crores of rupees, and for Garhwal region  another huge amount has to be raised, if the impugned judgment is in

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force.

     As  the  learned  Judges  did  not  indicate  how  the Government  should  make  up the whopping  amounts,  we  are unable  to  concur with the aforesaid direction.  We  cannot ignore  the  reality  that  major   revenue  of  the   State Government is through taxation.  But no taxation is possible without  legislative  sanction.  Government must have  other resources to meet the direction.

     It  may  be that people of Kumaun and Garhwal  require much  upliftment.   But they are not the only regions to  be attended  to by the State or Central Government.  Every part of  the  county requires further development.  If  the  High Courts  are to issue such directions for each region,  using different  writ  petitions, financial policy may have to  be restructured  by the Governments.  Judicial creativity  has, no  doubt, expanded to newer dimensions in recent past,  but that  is  no  justification  for using  judicial  power  for imposing  such unbearable burden on the State which in  turn would  be  compelled  to extract money out of  common  mans coffers  to meet such massive financial burden.  Suffice  it to  say  that  the  above direction  cannot  stand  judicial scrutiny and it is hereby set aside.

     The  Division Bench of the High Curt then proceeded to consider  whether sanction of the Government is required for prosecution  of  Government  officials   for  the   offences mentioned  in  the charge-sheet filed by the  CBI.   Learned Judges first held that there is no necessity for sanction to investigate  into the offences.  The following  observations were made for that purpose:

     The  High Court did not need any sanction to  require the   C.B.I.   to  inquire   and  investigate  into  alleged violation  of  constitutional  torts when  citizens  brought these petitions to the courts, whether the High Court or the Supreme  Court.  The Supreme Court had already made it clear that  when  the  C.B.I.  is called upon to  investigate  any matter,  the  sanction  of  the Central  Government  is  not necessary.   A corollary follows that the C.B.I.  would  not need  any sanction when, acting under the orders of the High Court,  after  inquiry and investigation, it has come  to  a prima facie conclusion that as an investigating agency it is obliged to draw up a charge-sheet.

     Nobody  raised  a  contention  that  sanction  of  the Government   is   required   for   ordering   investigation. Therefore,  the aforesaid exercise of the High Court was one in  futility.  But the High Court further proceeded and held that no sanction is necessary for prosecuting the Government officials as it is not part of any official duty to fire on unarmed political activists, exhume dead bodies of agitators shot  in  an agitation, loot or plunder unarmed people,  and rape and molest women.

     Learned  counsel  who  argued for all  the  appellants seriously  assailed the findings of the High Court, firstly, on the ground that question of sanction under Section 197 of the  Code should not have been considered in a writ petition filed  by  the Samity and secondly, on the ground that  even otherwise the High Courts reasoning is absolutely faulty.

     It is doubtful whether learned Judges would have meant

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that  no  sanction  is  required   for  the  court  to  take cognizance of the offences as the observations were confined to  the  stage up to laying the charge-sheet.  But we  agree that the effect of the observations of the learned Judges is to convey the message that High Court is of the view that no sanction is required for such prosecution.

     We  are  told  that  the magistrate  before  whom  the charge-sheets  were  laid  has taken cognizance  of  offence under  Section  302  of IPC among other  offences.   Learned senior  counsel appearing for the respondents argued that no sanction  under Section 197 of the Code can be  contemplated as  for the offence of murder, for, that offence cannot,  by any  stretch of imagination, be regarded as committed in the discharge  of  official  duties.  In reply  thereto  it  was argued  that  the  magistrate had gone completely  wrong  in taking  cognizance  of the offence under Section 302 of  the IPC  because the entire allegations, even assuming that they are  true, would only fall within the contours of  Exception No.3 of Section 300 IPC.  Counsel contended that the offence on  which cognizance could have been taken was only  Section 304 IPC and not Section 302 IPC.

     We  do  not think it necessary to decide the  question regarding  the  offences to be included in the charge  which may  be framed against the accused persons because that work has  to  be  done  by the Sessions  Judges  concerned  after hearing  both  sides, as provided under Section 228  of  the Code.   Appellants can raise their arguments regarding  what offences  can  be included in the charge at the  appropriate stage.

     The   question  of  necessity  of  sanction  need   be considered  by the Sessions Judge if and when raised by  the accused.   We  have no doubt that the High Court should  not have embarked upon a discussion regarding sanction at such a premature  stage, that too in the writ petition filed by the Samity.   If  the  finding  of the High  Court  is  that  no sanction  is required such finding has to be treated as  bad mainly  because that question has to be decided after taking into  account  various  considerations  including  the  fact situation in each case.

     Learned   Judges  issued   the  following   directions regarding  the  venue  of  the trial of  different  cases  : Trial for offences within the districts of Kumaun region is to be held by the court in sessions Division at Nainital and for  the  offences within the districts of  Garhwal  region, Haridwar  and  Muzzafarnagar,  to be held in  the  court  in Sessions  Division at Dehradun.  Where a special court  does not  exist, in any of the two sessions divisions, as  above, it   shall  be  established  by   the  State  of  U.P.    in consultation with the High Court, within one month and until so  established,  the  charge sheet, in  context,  shall  be submitted  into the court of the Chief Judicial  Magistrate, and  deal with in accordance with chapter XVI of the Code of Criminal Procedure.

     The  jurisdiction  of the Court can be decided on  the factual  foundation  in each case for offences  within  the districts  seems to be true with an expression incorporated in  the  aforesaid directions.  We are of the view that  the High  Court  should  not have pre-empted the  Court,  before which,  each  case  would come up in the normal  course,  to determine  the question of jurisdiction, if it is raised  by

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any  of  the parties.  It is difficult for us to  comprehend what  the learned judges would have meant by special court to  be  established by the State Government.  There  is  ;no suggestion  in  the  impugned judgment as to  what  are  the offences  alleged  to have been committed by  the  officials under    any    special      enactment.     The    aforesaid direction(extracted  above)  if allowed to remain  in  force would   create   only  confusion   and  provide   room   for procrastination of the trials

     When  the above mentioned directions of the High Court are  unsustainable  nothing  further survives,  because  the remaining  directions in the judgment are only ancillary  or incidental  to those main directions.  When the main pillars are to be removed, the edifice cannot be allowed to remain.

     On  careful consideration of the entire matter we have no hesitation to hold that the judgment of the High Court is unsustainable  and  has  to  be set aside.   The  appeal  is accordingly allowed and the impugned judgment dated 9.2.1996 is set aside.  There will however, be no orders as to costs.