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Satish Kumar And Othes vs State Of U.P. And Others

High Court Of Judicature at Allahabad|30 March, 2012


Criminal Misc Writ Petition No 22426 of 2011 Smt Sunita...............V...................State of U.P and others and Criminal Misc Writ Petition No9082 of 2011 Atul Sharma.................V................State of U.P. and others Hon Imtiyaz Murtaza J Hon V.K.Dixit, J (Delivered by Hon Imtiyaz Murtaza J) The above petitions have been preferred by the petitioners who claim themselves to be natives of three villages namely Bhatta, Parasaul and Acheypur which saw pitched battle between the District Administration and the villagers of the aforesaid three villages on 7.5.2011. The genesis of the trouble lay in their agricultural land having been acquired by the District Administration by invoking Emergency Clause of section 17 of the Land Acquisition Act which gave rise initially to remonstration by demonstration/agitation on various dates which, with the passage of time snowballed into a full-fledged battle on 7.5.2011 resulting in injuries and consequent death of some of the people both on side of administration as well as village people.
Petitioner no 8-Harshwardhan V. Sapkal- in writ petition (PIL) No 13109 of 2011, gave his credentials as a social worker who claims to have plied himself to the service of the farmers across the country and out of his anxiety for their rights and to secure justice for them, he has applied for being impleaded in this petition. The aforesaid petitioner, it would appear, had initially preferred a writ petition in the Apex Court and the Apex Court relegated him to the jurisdiction of this Court observing that the High Court is already seized of the matter relating to the violence in the aforesaid three villages. It is in this conspectus that the writ petition no 13109 of 2011 has been connected with other writ petitions.
The relief sought in writ petition No 13109 of 2011 is (i) for a writ of mandamus directing an investigation by the CBI or by a Special Investigation Team into the allegations and complaints set out in the petition, (ii) further a writ of mandamus directing the CBI/SIT to take over the investigation in respect of all First Information Reports registered with respect to the incident dated 7.5.2011 and thereafter (iii) issue a writ of mandamus directing to appoint a commission of enquiry to survey and determine the number of individuals that have disappeared and issue a writ of habeas corpus for production of those bodies, (iv) for a writ of mandamus directing for grant of compensation to the victims of these villages for the incidents which occurred on 7.5.2011 and (v) further for a writ of mandamus directing disciplinary action against all the officers found to be involved in misconduct/offences and use of excessive force. Similar are the prayers in other writ petitions As stated supra, the causative factor of trouble which erupted on 7.5.2011 was the forcible acquisition of agricultural land in the aforesaid three villages by the State Government and in connection with it, the tempers were running high and anger was simmering. Initially, the action of the Govt, it would appear, was assailed in the High Court against forcible acquisition of land which however by that time was protracting. What sent sparks and cinders flying was the murder of a youth namely, Hari Om on 6.5.2011 who, as claimed, was in the vanguard of agitation launched against the forcible acquisition proceeding of their agricultural land, and it was in this perspective that an agitation on 7.5.2011 was contemplated which was joined by the people of the three villages. It is alleged that although the agitation was peaceful, but police was deployed in large number and despite the fact that protest was peaceful, the police tried to disperse the mob which exacerbated the already fragile situation resulting in violence and injury to District Magistrate. It is alleged that number of farmers were killed as an excuse for assault on District Magistrate and thereafter, followed the atrocities on the local people. It is further alleged that although official figure rolled out by the Government showed two farmers and two police personnel killed in the violence but in fact, the figure was much higher than disclosed by the official agency. It is further alleged that ingress and egress in respect of all the three villages were sealed and police posse was deployed in the name of restoring law and order but in fact they let loose atrocities on the unarmed and innocent people. The entry of media, it is further alleged, was banned and all the three villages were cut off from rest of the world. It is also alleged that piles of bodies were incinerated beyond recognition so as not to leave any trace of atrocities on three consecutive days i.e 7th, 8th and 9th of May 2011. It is also alleged that the police and para-military forces, plundered the houses and let loose violence on men, women and children of the village and damaged the properties. It is also alleged that many persons fled to nearby forest area to hide and screen themselves from the atrocities and those who stayed back inside their houses were whisked away and they have not been heard of thereafter. Some of the missing persons have been declared as wanted by the local administration. It is also alleged that the Govt sanctioned compensation to the tune of Rs 67,69,000/- to as many as 110 people belonging to the three villages affected by the violence vide letter dated 4.7.2011 sent from the office of Distt Magistrate GB Nagar addressed to the Chairman, National Scheduled Caste Commission New Delhi as contained in Annexure no 8 to the writ petition. It is stated that there is a complete lack of trust on the part of the villagers qua the local authorities and there there has been a complete breakdown of the state machinery in so far as the maintenance of law and order of the villages aforesaid is concerned. It is also stated that the National Commission of Women and the National Commission for Scheduled Castes and Scheduled Tribes have commended for CBI enquiry into the entire matter.
We have heard Sri Gopal Chaturvedi, learned Senior Advocate who advanced arguments on behalf of the petitioners and learned AGA at prolix length and have also delved into the materials on record.
The counter affidavit sworn by Hari Kant Tripathi, Special Secretary (Home) Govt of Uttar Pradesh Lucknow has been filed in which it is averred that the incident which occurred on 7.5.2011 was an off-shoot of high handedness of one person namely Manveer Singh Tewatiya and his accomplices who it is alleged was a person with criminal background. It is also averred that in all 1716 persons were the affected land holders of village Parsaul, out of which 770 land holders had received compensation till 5.5.2011. Again in respect of village Bhatta out of total 506 affected land holders, 345 land holders have already received compensation till 5.5.2011. It is also averred that the aforesaid Tewatiya had earlier organized protests and lashed them into indulging violence at town Tappal District Aligarh in the year 2010 and in respect of the incident engineered by the aforesaid person as many as four criminal cases were registered, which were (1) in case crime no 302 of 2010 under section 188 IPC PS Tappal District Aligarh, (ii) case Crime No 308 of 2010 under section 147, 148, 149, 307, 336, 353, 332 IPC and 7 Criminal Law Amendment Act and 25 Arms Act PS Tappal District Aligarh (iii) case crime No 314 of 2010 under section 147, 148, 149, 332, 353, 336, 188, 307, 504, 506 323 IPC PS Tappal District Aligarh (iv) Case crime No 303 of 2010 under section 147, 148, 149, 434, 188, 352, 504, 506 IPC and Section 7 of Criminal Law Amendment Act PS Tappal District Aligarh. It is further averred that various criminal cases were registered against the said Tewatiya in the year 1987, 1992 and 2000 respectively the details of which are contained in para 6 of the counter affidavit. It is also averred that the aforesaid Tewatiya in league with some disgruntled opposition leaders, sowed seed of discord and formed a clique who indulged in various anti social activities committing heinous offences which culminated in the unfortunate incident dated 7.5.2011. Prior to the incident, it is averred, aforesaid Tewatiya with accompanying mob detained a roadways bus and held captive two of the roadways employees on 6.5.2011 with the avowed intention of forcing the Govt to accede to their illegal demands. In the meanwhile, it is averred, roadways employees submitted a memorandum intimating that in case that the release of aforesaid employees who were held as hostages by Tewatiya and his associates is not effected, they would proceed on strike. Taking into consideration the prevailing situation, the police force was readied to maintain law and order. In the meanwhile one of the family members of the roadways employees held as hostages, namely A.K.Bharadwaj expressed willingness to go to village for negotiation. The same day the aforesaid family members after return from village Bhatta Parsol, disclosed that the lives of hostages were in peril. In these circumstances, it is averred, the District Magistrate and other authorities left for villages Bhatta and Parsol for negotiation with the agitators for release of employees held as hostages. As soon as the District Magistrate and other authorities reached the village, the agitators on being exhorted by Tewatiya started pelting stones followed by firing upon the police force. Despite warning when it seemed that there was no way out except to use force, to begin with, tear gas shells were used followed by use of rubber bullets and when it did not yield result, reinforcement was sought. In the meanwhile, one of the fire opened by Tewatiya and his group hit the thigh of District Magistrate who fell down on the spot and as a result, the force retreated except few police personnel who were bearing brunt of the attack by the agitators. In the meanwhile, IG Meerut Range reached the spot with reserve police but the attack did not subside. In the continuous firing and attacks mounted by the agitaros, Manveer Singh and Manohar Singh Constables received serious gunshot injuries who later on died in the hospital. In the unabated attack, SSP GB Nagar, City Magistrate, GB Nagar, Circle officer Udairveer Khokhar, Ambesh Tyagi and Rahul Kumar and several police personnel also sustained injuries. It was in this conspectus that the police force was issued orders to to make use of firearms in self defence. It is also alleged that in the firing opened in defence, only two persons from the side of agitators were killed namely, Rajveer Singh, who, it is alleged, had snatched SLR from Constable Manvir Singh and another person who died in the firing was Rajpal. Several other persons also sustained injuries. In respect of the incident that occurred on 7.5.2011, as many as six criminal cases were registered naming Manvir Singh Tewatiya, Neeraj Malik and hundred of other persons. The deponent has denied any atrocities having been indulged in by the police force or District Administration. He also refuted the allegations of any incident of rape or any living person having been burnt alive. He also stated that report of National Women commission was vague and was not supported with any clinching proof. He also stated that the matter has been handed over to CBCID for investigation which is conducting fair and impartial investigation in the matter. He also took exception to the allegations referred to in the NHRC report which according to the deponent contained tutored statements of the village people made on dotted line at the behest of rival opposition parties to malign the Govt. As regards three missing persons, it is averred in para 28 that all the three persons were very much alive and were found present at their respective houses. In the aforesaid affidavit, details were given about the help and efforts made by the district administration to restore peace and to provide medical aid etc and also to restore confidence in the general public Learned AGA, to begin with, raised objection having complexion of preliminary objection to the effect that the contents of the writ petition as well as swearing thereof are not in accordance with the provisions of Chapter IV Rule 12 of the Rules of the Court, 1952 and that the petitioner no 8 has not disclosed as to how, he claims to be a passionate social worker and claims to be working for the benefits of the farmers across the country. It is also canvassed that Harshwardhan V. Sapkal has not made any averment that he was present during the incidents narrated in the writ petition, and by this reckoning, he cannot have personal knowledge of the incidents as alleged in the writ petition. It is further canvassed that the instant writ petition has been filed after elapse of more then three months from the date of occurrence actuated by ulterior motives for which it is further canvased, has employed as a ruse the names of petitioners 1 to 7 to vindicate his stand for filing the instant petition.
The learned AGA has taken aid of Chapter XXII Rule 1 (3-A) of the Rules of the Court which it is canvassed are mandatory in nature further submitting that the petitioners 1 to 7 have personal interests while petitioner no 8 has not disclosed his credential background of social activities and source of knowledge of facts of the incident dated 7.5.2011. He also submitted that paragraphs 3,4,5,6,7,8,9,10, 11,12,13, 14 (p), 16 (P), 17, 18, 19 (P), 20 (P) 22, 23, 24, 25, 26, 27, 28, 29 have been sworn on personal knowledge while paras 1,2, 14 (p), 15, 16, (p), 18 (p), 20 (P) and 21 have been sworn on the basis of perusal of papers by the deponent who is arrayed as petitioner no 8 in the writ petition. The precise argument is that source of knowledge of facts as claimed by the petitioners is not congruent with the allegations made in the writ petition. He also elaborated that the petitioner no 8 has not said that he was present during the incident dated 7.5.2011 and even thereafter in village Bhatta and Parasaul or even in any other adjoining place and by this reckoning, it is argued, the contents of the writ petition do not find support from the accompanying affidavit. It is in this conspectus that the learned AGA tried to lend cogency to the apprehension that the writ petition was politically motivated and has been with oblique motive and malafide intention. It is also submitted that the relations of petitioners 1 to 7 have been arraigned of criminal offences in respect of the incident and therefore, the present writ petition is nothing but a ruse to settle scores with the lawful authorities of district administration and to use this petition as a tool to exert pressure to secure settlement of the criminal cases registered against them. It is in the above perspective that the prayer has been made to dismiss the writ petition which has been filed with oblique motives. Several decisions have been cited to bolster up and vindicate his stand by the learned AGA. These decisions are State of Uttaranchal v Balwant Singh Chaufal and others (AIR 2010 SC 2550, M/S Holicow Pictures v Prem Chandra Mishra and others (AIR 2008 SC 913), Divine Retreat Centre v State of Kerala and others (AIR 2008 SC 1614), P. Sheshadri v Mangati Gopal Reddy and others (AIR 2011 SC 1883), and Sate of West Bengal and others v Committee of Protection of Democratic Rights, West Bengal and others ( 2010 (3) SCC 571).
We do not propose to delve deep into the above cited decisions as the position on this aspect does not brook any dispute. The decisions cited are on the aspect that the Court has to exercise due caution and lay down certain parameters of Public Interest Litigation. The substance of what has been observed in all these decisions is that the individual who moves the court for judicial redress in cases of public interest litigation must be acting bone fide with a view to vindicating the cause of justice and not for any person gain or private profit or of the political motivation or other oblique consideration. It would suffice that we have derived much dividends by going through these decisions.
In para 4 of writ petition no 13109 of 2011, it is clearly disclosed by petitioner no 8 that he was a passionate social worker especially on issues relating to farmer's rights and has worked for the benefit of farmers across the country and that he has been instrumental in helping educate the villagers with regard to their rights and to help them seek justice for the atrocities committed against them. Nothing has been brought on record by the State which could convincingly bring home the fact that the deponent was not acting in pro bono publico spirit. In our view, the interest of justice would not be attained if the petitioner no 8 is de-listed from the array of the parties merely on the ground that he had not proved his credentials inasmuch as nothing has been brought on record which could form the basis for opinion that the claim of the petitioner no 8 was not worth accepting and by this reckoning, the averments made on oath in the affidavit that he was a passionate social worker and has worked for the benefit of farmers across the country, do commend us for acceptance and in our opinion, would constitute cogent and convincing ground to prove his credentials. In this view of the matter, the objection of the learned AGA that the petition commends itself to be dismissed on this ground, cannot be said to be tenable.
The learned AGA next submitted that the petitioners 1 to 7 were partisan as their kins had been involved in one way or the other in cases registered in respect of occurrence dated 7.5.2011. In view of the allegations that the police personnel and district authorities had wrought havoc in retaliatory move in the village after initial skirmishes with the police in which two police personnel were killed and District Magistrate had also sustained pellet injuries, we do not think that it would be proper to go into merit on this aspect in our jurisdiction under Article 226 of the Constitution of India.
The learned Counsel for the State also argued that no incident of rape at all occurred and the case has been set up subsequently to hype up the entire matter for political consideration. Referring to report of National Human Rights Committee, the learned counsel submitted that NHRC had recorded statements of certain village people including seven female and but none of them mentioned about the incident of rape. He has also drawn our attention to the fact that the writ petition was filed in this court in which Smt. Rani who subsequently made allegation of rape is arrayed as petitioner no 7 had also not made any allegation of rape in the entire petition. It is submitted that merely on the basis of statements recorded by the NHRC Team it was opined that the incident of rape cannot be ruled out. It is also submitted that NHRC submitted its report on 6.7.2011 in which it was stated that in the scenario prevailing at the moment the possibility of rape cannot be ruled out. He canvassed that in fact immediately after the NHRC Team submitted the report, the notary affidavits prepared prepared on two dates namely 7.7.2011 and 20.7.2011 were filed alleging the incident of rape on women in the village. He submitted that the allegations of rape are wholly untenable and cannot be believed and appear to be motivated by political consideration. He also submitted that Smt Sunita had knocked the door of the court by filing application under section 156 (3) Cr.PC which culminated in the order for registration of FIR and investigation therein is underway.
Citing instances of state machinery being prejudiced, it is submitted by the learned counsel for the petitioners that in the writ petition filed by Smt Sunita it is alleged that the order of registration of FIR was taken in challenge by the SHO Anuj Kumar Chaudhary by filing writ petition No 20575 of 2011 alongwith Writ petition No 20574 of 20111 filed by one Ram Darash Yadav. However both the petitions climaxed with dismissal and it was thereafter that the case was registered in case crime no 315 of 2011 under section 147, 448, 452, 376, 294, 427, 504, 506 IPC at PS Dankaur. It is further submitted by the petitioner Smt Sunita that after the order for registration of case was passed, the SHO of PS Dankaur preferred a criminal revision against the order dated 15.9.2011 which also culminated in dismissal. It was against the said order that the aforesaid writ petition was filed by the SHO in the High Court. It is further submitted that even after registration of the case as aforesaid, the police sat tight over the matter and did not proceed with investigation.
On the question of filing of the writ petition no 20575 of 2011 by the SHO Dankaur, it is submitted that larger Bench of the Apex Court is seized of the significant question of law "Whether upon receipt of information by an officer in charge of the police station disclosing cognizable offence, it is imperative for him/her to register a case under section 154 of the Code of Criminal Procedure, 1973 or a discretion lies with him/her to make some sort of preliminary enquiry before registering the same." In this connection it is submitted that reference was made in a case Lalita Kumari v Govt of U.P and others (2009) 2 SCC (Cri) 812.
As regards filing of the writ petition by the SHO and consequent observation of the Court criticising the conduct of the SHO, the learned AGA tried to justify the conduct of the SHO and cited the observation as uncalled for.
Lastly it is submitted that the entire matter has been withdrawn from the jurisdiction of the local police and has been entrusted to the CB CID.
In writ petition No 9082 of 2011 preferred by Atul Sharma, it is averred in para 19 that several persons were burnt alive in retaliation by the district administration and several persons went missing from the village Bhatta Parsaul District Gautambudh Nagar. In para 21, it is alleged that one of the villager, namely, Iqram was found missing and when the family members of said Iqram approached the police, they were not permitted to enter the campus of the police station. The other allegations in the writ petition are reiteration of alleged atrocities committed by the police personnel.
The prosecution has claimed that only four persons were killed in the incident out of which two were police personnel and two were village people. One missing person namely Iqram is shown to have been alive and is said to be residing in his house. No precise details have been furnished about missing persons except Iqram who has subsequently been recovered and was found residing in his house. As regards the allegations of several persons having been burnt alive, it is proved from the Lab report that the ashes sent for examination were not remains of human being.
We have considered the matter in all its pros and cons. The crux of the prayer is that they have no trust in the local police or CBCID and the investigation of the atrocities should be entrusted to a Central Agency. No doubt, there appears to be substance in the allegation that the police used force and resultantly, both sides suffered injuries. The District Magistrate suffered bullet injuries and two police personnel were killed in the cross firing. In defence, it is argued that some undesirable elements had joined the villagers and thereafter they escaped and main brunt of retaliatory action was borne by the village people.
The learned AGA has brought on record the steps taken by the District Administration in order to restore peace and confidence in the village people. It is also submitted that the entire matter has been entrusted to CB CID which is an agency other than the local police and local administration cannot influence the investigation in any way..
In our considered view, the allegations and counter allegations are so intertwined that it is difficult to judge the truth of the matter. However, ex facie, we are of the view that since the matter is being investigated by the CB CID, we do not think that the local people should not trust the fairness of the investigation. In the recently concluded election, new Govt has been formed and there is change of guard in the hierarchy of administration as well. It is hoped that the CB CID shall conduct the investigation in a fair manner and take the matter to finality expeditiously preferably within four months from the date of the decision of this Court. However, it is desirable that the State Govt should constitute a committee consisting of senior officials who may monitor the progress of the investigation from time to time.
With the above observation, the above petitions are disposed of accordingly. However, the petition shall be listed after four months with the report of compliance which may be brought on record immediately after four months.
MH March 30,.2012
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Satish Kumar And Othes vs State Of U.P. And Others


High Court Of Judicature at Allahabad

30 March, 2012
  • Imtiyaz Murtaza
  • Virendra Kumar Dixit