RAVI S. DHAVAN, J. This writ petition of Uttarakhand Sangharsh Samiti came to court on 7th October, 1994 within five days of the incidents to which the courts attention was drawn, which occurred in the areas of the hills of Uttar Pradesh and concerned the peoples of Kumaon and Garhwal. 2. On the first three days of October, 1994, while a representative section of the peoples of the hills of Kumaon and Garhwal were as activists exerting their civil rights they were met with State resistance. The resistence came from the ad ministration and was executed through the police and para- military forces. There was firing on the crowds and at Mussoorie in Garhwal and Khatima in Kumaon and a little beyond the foot hills of these regions at Muzaffarnagar, there were deaths by firing. From Muzaffarnagar came reports of sexual assaults by police and the Provincial Armed Constabulary. The reports from the media carried new nation wide, of those killed in firing and of women being raped and molested and yet others were shorn of their jewellery and personal effects. Why did all this happen? 3. Why should a civil rights movement to agitate in support of a demand that has been formally agreed to lead to violence? 4. Kumaon and Garhwal are the regions of hills and mountains of the north whether of the nation or the State of Uttar Pradesh. The terrain is part of one continuous chain of the young fold mountains which stretch from Gilgit in the North to the ranges of Jammu and Kashmir. Himachal Pradesh, Garhwal and Kumaon in U. P. , Nepal, Sikkim, Bhutan, North Bengal, Assam and Meghalaya and thereafter the mountains ranges intertwining themselves in the ranges of Burma, now Kanmar. Except the areas of Kumaon and Garhwal, all other areas the geographic map shows are States. 5. A long term claim of the peoples of Kumaon and Garhwal dating back to 1930, ultimately crystalised into a demand for a separate province within the na tion. The State Government of Uttar Pradesh had this claim examined over the last sixty years through various official agencies, the last of them being a Committee headed and chaired by a Hpnble Cabinet Minister, Mr. Ramashanker Kaushik. The Kaushik Committee submitted its report. It was recommended that Kumaon and Garhwal should see statehood and be known as the State of Uttaranchal. Ramashanker Kaushik. The Kaushik Committee submitted its report. It was recommended that Kumaon and Garhwal should see statehood and be known as the State of Uttaranchal. The two Houses of the State Legislature accepted the report of the Ramashanker Kaushik Committee. 6. The State Government accepted as a measure of policy, endorsed in resolu tions of the two houses of the Legislature, cutting across all political party lines, that the areas of Kumaon and Garhwal have an identity and the peoples of these areas need to be identified as a State. The State of Uttar Pradesh has nad it deter mined that the peoples of Kumaon and Garhwal, are ethnically, socially, economi cally, and culturally different and live and work in entirely different circumstances. The policy of the State of Uttar Pradesh has received approval and mandate from its Legislature. This policy has even gone this far that the State of Uttar Pradesh had it declared and moved the federal Government, as far as it is concerned under Part II of the Constitution of India, to recommend and seek statehood for the regions of Kumaon and Garhwal, as a State known as Uttaranchal. More details on this aspect of the State of Uttar Pradesh, at its initiative conceeding statehood to the regions and the peoples of Kumaon and Garhwal are in the judgment of this Court in re the matter of Manvendra Shah, Member of Parliament v. State of Uttar Pradesh, Writ Petition No. 29843 of 1994 decided on 31 May, 1995 [since reported in 1995 (2) LBESR 147 (All)] 7. With this background, when the State Government issued an ordinance and Government orders to make reservation of seats in educational institutions on the basis of criteria the hill people felt were applicable only on the plains and clearly absent in the hills of Kumaon and Garhwal, the peoples of these areas protested. They agitated that the State of Uttar Pradesh be realistic and run its administration on its declared and determined policy already having received sanction of the State Legislature. In the reservations of seats, in educational institutions in Kumaon and Garhwal, for a class of people who admittedly did not and do not exist in the hills, the peoples of Uttaranchal felt that this step clearly envisaged a shift of population from the plains to the hills. Their abject poverty and admitted backwardness could not suffer this. In the reservations of seats, in educational institutions in Kumaon and Garhwal, for a class of people who admittedly did not and do not exist in the hills, the peoples of Uttaranchal felt that this step clearly envisaged a shift of population from the plains to the hills. Their abject poverty and admitted backwardness could not suffer this. In the ultimate, they sought to question the bona fides of the State Government on the one hand that it acknowledges the hills of Kumaon and Garhwal as an entirely alien region in its demographic composition to the plains of Uttar Pradesh, and good for being identified as a State in its own right, and yet being forced to import factors from the plains which would ultimately destroy the social, cultural and economic fabric of the hill areas. The State Government have no answer and was determined to push affirmative action in an area which i had itself declared as one which needs protection as a special and backward area. 8. To counter the State Governments move to force reservations into educa tional institutions in the hills with candidates from the plains, the peoples from the hills agitated. They agitated because in the hills record for record and with the population and demographic statistics glaring, those for whom reservations were ostensibly being created, as a simple reality of fact did not exist. In addition, the Kumaon and the Garhwal is agitated seeking enforcement of the commitment of the State of Uttar Pradesh through its two Houses of the Legislature on two oc casions, that they, were entitled to a separate identity as the State of Uttaranchal. 9. For this assertion of their civil right, they arranged to get together in large number and transport themselves down to the plains to demonstrate their demands. For this, they came down from the hills to proceed to the capital of the nation at New Delhi, to make their presence felt and lobby for the recognition of their identity, As it is often said that France does what Paris feels and determines, the ralliysts from Kumaon and Garhwal, likewise, thought that to voice their claims, grievances and political aspirations bus loads of them must demonstrate in the nations capital, New Delhi. They desired to demonstrate before and for those who matter in moulding the course of the nations politics. 10. They desired to demonstrate before and for those who matter in moulding the course of the nations politics. 10. Bus loads of rallyist left the hills and started reaching New Delhi. The meeting day was 2nd October, 1994, the birth anniversary of Mahatma-Gandhi, the Father of the Nation. Most of them reached their destination. The ralliysts were an amalgum from the cross section of hill society. There -were farmers, Government servants, housewives, retired armed forces personnel, teachers, students, to identity a few. Some had not even seen the plains and had not known of a world beyond the hills. 11. As night descended on 1st October, 1994, and the convoy of buses meandered down the hills and took to the foothills they passed through a series of barricades and checkposts. Those who descended from the hills of Kumaon and took the route via Rampur, Moradabad, Ghaziabad, New Delhi, reached their des tination safe and incident free ; the batch coming down from Garhwal had a dif ferent reception and treatment awaiting them. At Muzaffarnagar, there is a locality which goes by the name of Rampur-Tiraha. Close to mid-night the convoy was halted by the administration, and detained for being checked. What followed was headline news in the national newspapers. It was alleged that there was a carnage. The civil rights agitators were shot at, some died. They were looted: women were deprived of their jewellery. Girls and women were fondelled, their modesty out raged, and some raped, some repeatedly. A political aspiration in statehood for the hills of Uttar Pradesh, ended in a nightmare. The rallyists returned to the hills to tell of their harrowing experiences. 12. These civil rights agitationist from the hills of Garhwal saw and ex perienced different forms of curtailment of their rights and also had the Right to Freedom vitiated by the State administration. The women and children amongst them were detained, and carried away to far off places and lodged in jails in a manner which does not inspire confidence that it was done in accordance with the procedure established by law. But, this was not the end. 13. The hills saw a reaction. There were arrests there. In Khatima, Kumaon, the administration resorted to shooting, ultimately seven persons were killed. There. ,^& firing at Mussoorie, Garhwal, resulting in deaths including that of one police officer. Nainital saw firing and death both. 14. But, this was not the end. 13. The hills saw a reaction. There were arrests there. In Khatima, Kumaon, the administration resorted to shooting, ultimately seven persons were killed. There. ,^& firing at Mussoorie, Garhwal, resulting in deaths including that of one police officer. Nainital saw firing and death both. 14. Then five days after these incidents this writ petition was brought to the High Court. The petitioner, Uttarakhand Sangharsh Samiti, pleaded human rights violations, and excesses by the State administration. The hills were afire with an impatient and agitated people after the news of death and molestation of its women spread widely, but slowly. 15. Perceiving the gravity of the situation and with the sole object of initially coolling the tempers of the peoples of Kumaon and Garhwal. The Court appointed the Central Bureau of Investigation (CBI) to inquire into the allegations of human rights violations and report. The text of the order reads : "close on the heels on the turmoil in the hills of Garhwal and Kumaon has ar rived this petition filed by Uttarakhand Sangarsh Samiti, through Messrs Sudhir Chapliyal, Jodh Singh and Devraj Kapoor, from Mussoorie, placing details before the Court, of what has happened consequent upon the agitation of the people in these regions, which, otherwise, was based on resolutions of successive Government, in power, that the divisions of Garhwal and Kumaon become the subject matter of a creation of another State. That the State Government has recommended this is not a matter of issue and is already on record and this record is now available in this Court of Record itself, in another petition. It is W. P. No. 29843 of 1994 - Manvendra Shah v. State of U. P. and other [since reported in 1995 (2) LBESR 147 (All)]. The people of this region have been aspiring, so the petition says, reeling from long neglect to be given a better deal. The petition submits that by economic neces sities employment in these regions as a generality by force of circumstances has been confined to menial and clerical jobs or with the Armed forces. Beyond this, nothing has come their way, except rampant unemployment and frugal agricultural output from terraced cultivation on the mountains. The petition submits that by economic neces sities employment in these regions as a generality by force of circumstances has been confined to menial and clerical jobs or with the Armed forces. Beyond this, nothing has come their way, except rampant unemployment and frugal agricultural output from terraced cultivation on the mountains. It was also submitted that the peoples participation in local self-government has, virtually, been conspicuous by its absence, as a large population work away from their lands to sustain, their families in these regions. In the petition are related incidents of firing in the towns of Khatima, Mussoorie, Muzaffarnagar and Dehradun, other places are also mentioned. The court is not reproducing the details which the petitioners have submitted in the petition on what may have happened, but, it is serious enough for the Court to take notice of the fact that more than one life has been lost, not at one place but many places of the region, and beyond it. The petition also narrates, as a diary, though it is the petitioners version of it, that when the people of this region set off to go to New Delhi, to stage a demonstration, the bus loads of people from these regions were confronted by the police in west Uttar Pradesh. It is contended in the petition that in the hills and again on their journey to the nations Capital, there was firing on the people. The passengers were asked to disembark from the buses and mauled by the armed police. When they ran helter and skelter to take cover in the sugarcane fields on either side of the highway, they were fired upon. The women were chased into the fields to the molested and raped. The newspapers to which the Courts attention. was drawn, do report on these journeys, of passengers being shot upon and women being chased into the fields, and their undergarments scattered. Some women, the petition and the reports submit, are missing even today. Between what the petitioner submitted and the media reports, the Court cannot give a finding on what may have actually happened. The petitioner also submitted that one of their representatives, i. e. , Mr. Sudhir Thapliyal, desired to file a first in formation report with the Superintendent of Police, Dehradun, on 11th September, 1994, but, the first information report was returned and not recorded. The petitioner also submitted that one of their representatives, i. e. , Mr. Sudhir Thapliyal, desired to file a first in formation report with the Superintendent of Police, Dehradun, on 11th September, 1994, but, the first information report was returned and not recorded. For every agitation there has to be a cause and a causal and this concept lies deep in history and no rational analysis can escape this phenomenon. The crux of the matter are not these incidents in these regions, but, a broad based aspiration of dis content of peoples seeking and making out a case of identity. This was only a reac tion, and, if there be crimes, as alleged, then, there must be an investigation by an agency whose job it is to investigate. The aspect of a separate Statehood is now becoming a cause before the High Court. This is a matter of grave concern to this Court. The High Court expresses its concern as it is obliged under the Constitution, first, to-keep the compactness of the nation as a union of the States and, if called upon, to interpret even the aspect oil the identities of the people, the endeavour will always be that notwithstanding ethnic diversities, as far as possible, each State must retain its unity. It will always be the endeavour of this Court that peoples of all creeds and ethnic variations live in har mony without discord. The elected, representatives of the people, within the con straints and discipline of the Constitution, can render policies. But, the Court will not permit such issues, in a given cause before it, to become a battle ground for the vying for political power. But, in the matters before the Court, it is a reality and it is no use trying to escape from it, that if this agitation continues and each Government in power alienates its peoples into another Statehood, then, the Governments in power, not its people, are setting the process of the balkanisation of its areas and the peoples who reside in it. No Government can shed its citizenery. There is a dif ference between giving a better deal and showing the door to the balkans. The last is a dangerous game in politics. No Government can shed its citizenery. There is a dif ference between giving a better deal and showing the door to the balkans. The last is a dangerous game in politics. The primary and deep concern of the Court, frankly speaking and without mystery in this hour, is to water the fire, cool the tempers and contain the peoples of Garhwal and Kumaon in the peace of autumn of their hills, so that they do not have a winter of discontent. But, the deaths, the injuries, molestation and the rape of the womenfolk, is not a matter to be taken lightly and, if these scars, hurts and killings within this State have embroiled the people of the hills, it needs a threadbare, incident by incident investigation. The Muzaffarnagar incidents were, the petitioners contend, very unfortunate, as the people for their agitation had even taken the permission of the Delhi administration, to protest on their aspirations. This permission, the petitioners state, had been granted to the members of the Uttarakhand Sangharsh Samiti. It was submitted that it is now an agitation of a tussle between the people of the hill regions and the agency which is cast with the responsibilities of keeping law and order. The petition itself has no record that there are allegations of violance on both sides. An absolute, immediate, prompt and thorough probe by investigation is neces sary even for the State Government to see for itself, but by an agency whose busi ness it is to inquire. But, if the State Government has itself recommended carving out a separate region of the State out of the hills, then, its investigating agency has rendered itself as a spokesman for the cause of the Government, whatever it may be. The spark which ignited the bomb, is reservation. But, this mayhem must cease. The only investigating agency, left for these cir cumstances, is of the federal Government. It is the Central Bureau of Investigation. No time can be lost, and as the incidents are fresh in memory, with wounds and hurts yet to heal, and while people to be investigated are yet available, every person whose statement has to be recorded, it must be done with speed. It is the Central Bureau of Investigation. No time can be lost, and as the incidents are fresh in memory, with wounds and hurts yet to heal, and while people to be investigated are yet available, every person whose statement has to be recorded, it must be done with speed. 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 man damus, to execute the investigation on the incidents which have happened in the regions of Garhwal and Kumaon, between 17th June, 1994 (the date of issue of the first order securing reservations in educational institutions including its ap plicability to these regions) and until the investigation is determined. The investiga tion will also include the incidents narrated in this petition in the towns of Khatima, Mussorrie, Dehradun and near Muzaffarnagar. 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. A faint plea by the State counsel on the jurisdiction of the High Court to order an investigation by the Central Bureau of Investigation, without the consent or permission of the State Government, stands repelled by the decision of the Supreme Court in the case of State of West Bengal v. Sampat Lal, AIR 1985 SC 195 . In that case, the Supreme Court, in no uncertain terms, held that when the Court gives a direction to the Central Bureau of Investigation, in effect, neither consent nor sanction is required. But, the investigation will be confined to : (a) the agitations in the regions of Garhwal and Kumaon, and to include the Muzaffarnagar incident, (b) the matters connected with the agitations for Uttarakhand only, (c) consequential detentions of the agitationists, (d) the agitators detained, (e) details of injuries, deaths and molestation of women, and (f) damage to property, as a consequence of these agita tions with the aforesaid regions. A copy of the writ petition will be made available to both the Home Secretary, Government of India, and the Director General, Central Bureau of Investigation. A copy of the writ petition will be made available to both the Home Secretary, Government of India, and the Director General, Central Bureau of Investigation. On the time, the Central Bureau of Investigation will take to investigate, the Court sought the advice of the Seamed Senior Standing Counsel, Central Govern ment, and he submitted that regard being had to the circumstances, the Court may grant six weeks time for concluding the enquiry. A report thereon may be processed within a period of two weeks, thereafter, and it could be placed before the Court on 5th December, 1994. Accordingly, this Court so directs, for the investigations to proceed and to receive the report on or before 5th December, 1994. The matter will be listed on that day. Apart from as above, let notices be issued to the respondents, except the res pondents, No. 2 & 8, i. e. , the Honble Mr. Justice Rajeshwar Singh Yadav, ex-Judge, High Court, Allahabad, and his Excellency, the Governor of the State of U. P. , as truly, even from the record, nothing has been done by the aforesaid respondents, so that the Court may issue notices to them. Any reply on the facts given in this peti tion, the respondents who have been put under notice, may file within a month from today. Upon the receipt of the report from the Central Bureau of Investiga tion, parties will have further opportunity on whatever they desire to submit. Three copies of certified copy of this order may be given to the Senior Stand ing Counsel, Central Government, so that he may intimate the (i) The Home Secretary, Government of India, New Delhi; and (ii) The Director, Central Bureau of Investigation, New Delhi post haste. Thereafter, copies of this order raay also be given immediately, but, today, to the parties who ipply for the orders. " 16. The State of Uttar Pradesh did not accept the ad interim order of the High Court by which it was stated that in the face of the presence of the State administrative machinery, these tragedies and occurred. Initially, the State of U. P. did not even acknowledge that during the widespread agitations, these pathetic incidents had taken place. 17. The State of Uttar Pradesh did not accept the ad interim order of the High Court by which it was stated that in the face of the presence of the State administrative machinery, these tragedies and occurred. Initially, the State of U. P. did not even acknowledge that during the widespread agitations, these pathetic incidents had taken place. 17. The State Government in Uttar Pradesh, seemed piqued by the order that the High Court had appointed the C. B. I. to inquire into the incidents in which the Uttarakhand Sangharsh Samiti, the petitioner, alleged violation of human rights. The State Government lodged a Special Leave Petition before the Supreme Court. There its contention was that the High Court could not order a C. B. I. inquiry without the permission of the State Government; that the State Government had already appointed a retired High Court Judge to inquire into these very matters in which the High Court had ordered an investigation through the C. B. I. ; that there was no cause to inquire into the incidents through the C. B. I. as the agitations were misconceived ; that the assertions alleging the human rights violations were exag gerated ; that the writ petitions were frivolous enough to warrant dismissal. 18. The C. B. I. , also took recourse to challenge the order of the High Court, in effect, alleging that the format of the inquiry was too large and it sought modifica tions for curtailing the scope of the inquiry. 19. While these matters were pending at the Supreme Court, i. e. , the Special Leave Petition of the State of U. P. and the application of the C. B. I. , several other organisations and persons moved the Supreme Court separately under Article 32 of the Constitution of India, by writ petitions, with allegations against the administra tion of the State of Uttar Pradesh, giving further and better particulars, of deaths by shooting, robberies on unprotected women, molestations and rapes of women civil rights workers, and illegal detentions of a large number of civil right agitationists where the constitutional provision of post- remand custody were al leged to be violated. The Supreme Court grouped all these matters in the matter relating to allegations of human rights violations. The Supreme Court grouped all these matters in the matter relating to allegations of human rights violations. The following writ petitions were filed before the Supreme Court, and re-registered at the Allahabad High Court after transfer by the Supreme Court: (1) Writ Petition (Crl.) Nos. 322-323/94 - Society for Protection of H. R. U. and another v. State of U. P. and another, Writ Petition No. 39919 of 1994 ; (2) Writ Petition (Crl.) Nos, 327-330/94 - Uttarakhand Rajya Kendriya Sanstha Samiti & others v. Union of India and Others, Writ Petition No. 39921 of 1994 (3) Writ Petition (Crl.) No. 324/94 - Uttarakhand Jan Morcha v. Union of India & Others, Writ Petition No. 39920 of 1994; (4) Writ Petition (Crl.) No. 326 of 1994 - Mohan Chand v. Union of India & Others, Writ Petition No. 40216 of 1994. 20. The Supreme Court did not touch the order of the High Court and retained it in its entirety. It indicated to the State Government of Uttar Pradesh that it did not see any reason to entertain the appeal which it had filed against the order of investigation on allegations of human rights violations which were serious enough to be inquired into. It dismissed the Special Leave Petition of the State Government in Uttar Pradesh. Amongst the many orders passed, the following order, while rejecting the Special Leave Petition of ;he State Government in Uttar Pradesh needs to be noticed: "slp (C) No. 18125/94: We have heard learned counsel for the parties at length. We have been taken through the impugned judgment wherein the High Court has directed the Central Bureau of Investigation to hold an investigation in various allegation of, human-rights violations resulting in injuries, deaths and molestation of women in the town of Muzaffarnagar, Mussoorie, Dehradun and Khatima. The CBI has directed to submit its report to the High Court before December 5, 1994. We see no ground to inter fere with the judgment of the High Court. We dismiss the special leave petition. Mr. Altaf Ahmad, learned ASG appearing of the CBI wants us to give some further direction to facilitate the investigation by the CBI. We are not inclined to do so. CBI may approach the High Court for necessary directions in this respect. We dismiss the special leave petition. Mr. Altaf Ahmad, learned ASG appearing of the CBI wants us to give some further direction to facilitate the investigation by the CBI. We are not inclined to do so. CBI may approach the High Court for necessary directions in this respect. Since the writ petition is pending before the High Court, the parties, if they so wish, may approach the High Court for any direction if necessary. WP. (Crl.) Nos. 324/94, 327-330/94, 322-323/94 Keeping in view our order in SLP (C) No. 18125/94 no useful purpose will be served to keep these writ petitions pending in this court. We transfer these petitions to the Allahabad High Court with a request that these petitions be treated as writ petitions under Article 226 of the Constitution of India and be dealt with in accord ance with law. " 21. In so far as the C. B. I. was concerned, the Supreme Court indicated that any request of modification which the investigating agency sought, should be made before the High Court. 22. But, while the matters were pending before the Supreme Court, notices had been issued to those arrayed as party respondent, thus, every conceivable per son whether an official of the State Government or the State of U. P. itself, or for that matter, the Union of India, was under notice of the Supreme Court to answer the cause brought into Court and, thereafter, be apprised of the fact that the order of the High Court had not been interfered with by the Supreme Court and instead even the petitions filed before the Supreme Court stood transferred, as writ peti tions, for being considered at the Allahabad High Court. 23. The writ petition of the Uttarakhand Sangharsh Samiti, the one in which the order of 7th October, 1994 had been passed was answered on behalf of the State of Uttar Pradesh by the Joint Secretary, Home Department. In reference to the specific instances or the incidents which took place the reply is to the effect, that specific comments in reference to the specific districts will be offered by the District Magistrates or the administration concerned. An answer by the State of Uttar Pradesh on what exactly had happened in reference to those killed in the firings whether at Muzaffarnagar, Mussoorie or Khatima and the women who were molested and raped, was evaded. 24. An answer by the State of Uttar Pradesh on what exactly had happened in reference to those killed in the firings whether at Muzaffarnagar, Mussoorie or Khatima and the women who were molested and raped, was evaded. 24. But on the generality, while acknowledging that the people of the hill areas and these regions were reserved for special treatment, even to statehood, it was reiterated that the policy of reservation would be for uniform application all over the State. An answer to the question whether if the people for whom the benefit of the reservation had been made were not available, would the vacuum be filled by the population of the plains shifting to the hills, the reply was. evaded. The reply of the State Government on the tragedies which had taken place and the inquiry by the C. B. I. , was, that it could rather have the matter investigated through a State Commission. 25. As the State of U. P. has itself pleaded that the reply to the particular incidents would be given by the District Magistrates concerned, this leaves the Court with no option, but to look at the replies filed by the officials of the district ad ministration in reference to the major incidents which the Court is examining to , come to a prima facie conclusion whether human rights had been violated. The District Magistrate, Dehradun, arrayed as respondent No. 3, initially did not file his affidavit, but had it filed through his Deputy Collector, Dehradun. The essence of the reply on behalf of the District Magistrate, Dehradun is that the State machinery acted within the four corners of the law. Only at Mussoorie it is accepted that there were casualties, as one Deputy Superintendent of Police had admittedly died in tragic circumstances also. 26. The District. Magistrate, Muzaffarnagar, arrayed as respondent No. 4, also evaded filing his affidavit. He had his version filed through the Additional District Magistrate (Executive), Muzaffarnagar. Muzaffarnagar is the place where the incident, now known as the events at Rampur Tiraha, took place. There was firing in which civil right workers agitating for their cause died. This was the place where women, it is alleged, were robbed, molested and raped. The affidavit filed on behalf of the District Magistrate says that prohibitory orders had been issued imposing a ban on carrying of fire-arms and weapons. There was firing in which civil right workers agitating for their cause died. This was the place where women, it is alleged, were robbed, molested and raped. The affidavit filed on behalf of the District Magistrate says that prohibitory orders had been issued imposing a ban on carrying of fire-arms and weapons. The agitationists, it is contended, had turns violent and were violating the prohibitory order and disrupting peace. Thus, it is explained that 345 persons had been arrested; 298 men and 47 women. The firing on the agitators was a defensive action to dispers them. The affidavit refers to agitators who were seen falling on the ground and that such of them were rushed to the district hospital. The affidavit also mentions that some of the agitators who received bullet injuries died. In reference to the molestation and rape of women, the affidavit denies that the women were raped. The District Magistrate asserts that no formal complaint has been lodged with the district police of Muzaffarnagar nor any complaint has been received from any other district of the State on allegations of rape and molestation of women. In effect, the affidavit pleads ignorance of any allegations of rape or molestation of women and hides behind the explanation that no such incident had been reported to the officials. Along with this the affidavit of the Superintendent of Police, Muzaffarnagar becomes relevant. This official reiterates what the District Magistrate submits, in effect, suggesting that the travellers from the hills had become violent and firing was resorted to as a result of their violent behaviour. There is no difference between the narration in the affidavit on behalf of the District Magistrate, Muzaffarnagar and the Superin tendent of Police, Muzaffarnagar, in reference to the allegations of rape and moles tation of women. The affidavit of Superintendent of Police, Muzaffarnagar, states that during meetings with the police officials "no agitator male or female com plained about any sort of misbehaviour or rape with any female agitator during police action". This affidavit asserts that no signs of rapes, death or serious injuries were found in the fields. The affidavit of Superintendent of Police, Muzaffarnagar, states that during meetings with the police officials "no agitator male or female com plained about any sort of misbehaviour or rape with any female agitator during police action". This affidavit asserts that no signs of rapes, death or serious injuries were found in the fields. The affidavit of the Superintendent of Police suggests that in the information which was received from the Deputy Inspector General of Police, concerned, of the two ranges consisting of eight hill districts of the State of Uttar Pradesh, no information of any incident of rape or molestation of women was conveyed. 27. In another petition, originally filed as Writ Petition No. 324 of 1994 - Uttarakhand Jan Morcha v. Union of India, before the Supreme Court of India, and subsequently transferred before the Allahabad High Court (Registered as Writ Peti tion No. 39920 of 1994), the respondents arrayed were : Respondent No. 1-Union of India, through Home Secretary, Home Affairs, North Block, New Delhi; Respondent No. 2- The State of U. P. , Secretary of Home (U. P.), Vidhan Bhavan, Lucknow ; Respondent No. 3-Mulayam Singh Yadav, Chier Minister, U. P. , Luck-now; Respondent No. 4-Director General of Police, U. P. , Lucknow; Respondent No. 5-Anant Kumar Singh, District Magistrate, Muzaffarnagar, U. P. ; Respondent No. 6-Vinod Pavar, A. D. M. , Muzaffarnagar ; Respondent No. 7-Rajendra Pal Singh, Superintendent of Police, Muzaffarnagar, U. P. ; Respondent No. 8- S. M. Naseem ; I. G. Meerut Zone; Respondent No. 9-Bua Singh, D. I. G. , Meerut Range; Respon dent No. 10-Mahesh Kumar, A. S. P. , Muzaffarnagar; Respondent No. 11-District Magistrate, Haridwar, Respondent No. 12-Superintendent of Police, Haridwar and Respondent No. 13-Comrmssioner of Police, Indraprasth, New Delhi. 28. On behalf of the Union of India, arrayed as respondent No. 1, no counter affidavit was filed. The respondent No. 13, the Commissioner of Police, In draprasth, New Delhi, also did not file any counter affidavit. 29. The counter affidavit on behalf of the State of U. P. affirmed by one Atul Kumar Gupta, Secretary, Department of Home, did not have anything to say beyond the counter affidavit already filed in Writ Petition No. 32982 of 1994 - Uttarakhand Sangharsh Samiti v. State of U. P. and others. 29. The counter affidavit on behalf of the State of U. P. affirmed by one Atul Kumar Gupta, Secretary, Department of Home, did not have anything to say beyond the counter affidavit already filed in Writ Petition No. 32982 of 1994 - Uttarakhand Sangharsh Samiti v. State of U. P. and others. It was submitted before the Supreme Court (It was the same counter affidavit which was filed before the High Court at the time of hearing) that the submissions made by the petitioners alleging, in effect, human rights violations, were without merit and the petitioner be dismissed. 30. The counter affidavit which was filed by Honble Mulayam Singh Yadav, the then Chief Minister of Uttar Pradesh, in so far as events as they took place in different concerned districts, has submitted,- to the effect, that they would be answered by the State Officials concerned. In reference to the allegations on the blockade at Rampur Tiraha, where the tragedy had occurred, it was denied that he as a Chief Minister had given any specific instructions to the officers for the block ade or the consequential actions which took place on that fateful day in Muzaffar nagar. The Chief Minister also denies that he had given any instructions to the administration or the police to destroy the evidence. But, in both the denials, the Chief Minister also contends that he had not given any instructions, as were al leged, to his officials. The final submission of the then Chief Minister is that the petitioners have failed to make out any reasonable ground for sustaining the peti tion under Article 226 of the Constitution of India before the High Court and the petition being devoid of merits is liable to be dismissed. The affidavit of then Honble Chief Minister, is dated 22nd December, 1994. , 31. The Director General of Police, before the Supreme Court of India, did not file his personal affidavit, but had it filed through the Deputy Director General of Police, Meerut Range, Mr. Vikram Singh. It was contended on behalf of the Director General of Police, the respondent No. 4, that the office of the Director General of Police had inquired from the Deputy Inspector General of Police Garhwal Range and Kumaon Range, if there were any reports/complaints about the missing persons and about incidents of alleged rape/molestation etc. Vikram Singh. It was contended on behalf of the Director General of Police, the respondent No. 4, that the office of the Director General of Police had inquired from the Deputy Inspector General of Police Garhwal Range and Kumaon Range, if there were any reports/complaints about the missing persons and about incidents of alleged rape/molestation etc. /disappearance of persons in the incidents of 1/2-10-1994 of the districts of Haridwar and Muzaffarnagar. It is contended that upon the information which was received from the office of the D. I. G. (Police) concerned, of the two ranges consisting of eight districts of the State of Uttar Pradesh, the answer was in the negative. The contention in the affidavit is that there is no information of the incidents alleged in the petition. 32. The District Magistrate, Muzaffarnagar, reiterates his contentions that the petition has been filed on "exaggerated statements" and that they are "based upon hearsay information". The statements of the District Magistrate, Muzaffarnagar, are the same as have been given in the Writ Petition No. 32982 of 1994. 33. The Inspector General of Police, Meerut Zone, at the relevant time, was S. M. Naseem, he was been arrayed as respondent No, 8 in Writ Petition No. 39920 of 1994. The affidavit of this respondent is no different than the affidavit which has been filed on behalf of the District Magistrate, the Superintendent of Police, and on behalf of the Director General of Police. In reference to the allegations of rapes and molestations of women in the districts of Haridwar and Muzaffarnagar on the night of 1/2 October, 1994, statements similar to those made by the other respon dents have been adopted. The explanation simply is that the information from the offices of the D. I. Gs. (Police), there was no report, of the incidents having taken place. In effect, knowledge of any report or information on rape and molestation of women is denied for the simple reason of want of information. 34. Respondent No. 9 is the Deputy Inspector General of Police, Meerut Range, Mr. Bua Singh. His affidavit is also no different from the other officials who have been arrayed as respondents. The assertions of the petitioners on the mis behaviour by the police with the women and allegations of rape and molestation, are not accepted. 34. Respondent No. 9 is the Deputy Inspector General of Police, Meerut Range, Mr. Bua Singh. His affidavit is also no different from the other officials who have been arrayed as respondents. The assertions of the petitioners on the mis behaviour by the police with the women and allegations of rape and molestation, are not accepted. This respondent submits that he was not aware of any such inci dent, as it was "never brought to my notice either by any alleged victim or any other person. The allegation contained in paragraph under reply is so vague and without basis and it cannot be capable of being verified. The deponent has however, read such reports, in news papers". He further submits in his affidavit that "the truth of the allegations can only be known by the result of the inquiry/investigation made by the C. B. I. or verdict by the Court. I am not in a position either to verify the cor rectness of this version because I was not present at the place of alleged incidents. In reference to the assertion of the petitioners that he along with the Inspector General of Police were present when these tragic events happened, the answer in the counter affidavits that "I deny the allegations in paragraph No. 5 of the petition that I was present along with Sri S. M. Naseem, I. G. , Meerut Zone at the place at the time of incidents. In fact I and I. G. Police (sic) were At Meerut at the residence at the time of firing. " In reference to the allegations that a bus load of women had been waylaid and diverted to another destination, this respondent submits "the averments made in paragraph No. 8 of the writ petition that two buses full of women passengers were kidnapped is absolutely false and denied". 35. The respondent No. 10 is the Additional Superintendent of Police, Muzaffarnagar, Mr. Mahesh Kumar. In his affidavit, he denies the allegations, in refer ence to the molestation and rape of women in the districts of Haridwar and Muzaf-farnagar on the night of 1/2 October, 1994. The submission is, to the effect, that the district administration had a team of local residents of Village Rampur, Sisaona, and Bhagwali constituted and those included the Pramukhs and the Gram Pradhans and the ex-Pradhans. The submission is, to the effect, that the district administration had a team of local residents of Village Rampur, Sisaona, and Bhagwali constituted and those included the Pramukhs and the Gram Pradhans and the ex-Pradhans. This team found no signs of rapes, deaths or serious injuries in the fields. He has denied that the Police misbehaved with the women folk. In reference to the specific allegations in Paragraph No. 8 to the petition of the women being subjected to molestation and rape, the explanation is the same as the other respondents that no formal complaint was lodged by the victims -or by their representatives at any police station concerned, nor was any complaint made to the Commissioner, or the Deputy Inspector General when they visited the spot. The allegations are termed as wrong and unsubstantiated. 36. The District Magistrate, Haridwar, is respondent No. 11. He does not ac cept the allegations which have been made in the petition of violation of any human rights. Likewise, the Superintendent of Police, Haridwar, respondent No. 12, also, does not accept any of the submissions of the petitioners on the violation of human rights. 37. The other affidavits of the State respondents or of the State Officials put together and summed up leave the position on record, thus : (a) any firing that was resorted to at any of the places of the incidents was a defence action as those in dulging in agitations had turned violent, (b) allegations, of molestation and rape of women are not accepted for want of knowledge as no report had been lodged by the alleged victims or even on their behalf, (c) no victim was detained as alleged specially a bus load of women, (d) nor were any mass arrests made so as to violate any constitutional right or mandate in the matter relating to putting the civil rights agitationists in custody or denying compliance with the constitutional requirement of remand in accordance with law, (e) deaths by firing of some of the persons at Khatima, district Nainital, is not accepted, instead, it is contended that the persons are missing or may have become victims of wild animals and of those who are dead and whose dead bodies were not returned to their kith and kin, but were exhumed, the allegations are denied. 38. 38. On merits, the agitation itself is termed as misconceived and it is con tended in the affidavits of all the State respondents that the people of Kumaon and Garhwal had to cause to agitate against the valid policies of the State Government and the protest was out of context and illegal. On the issue that the State Govern ment had itself accepted and classified these regions as backward by class and, thus, any affirmative action of reservation being applicable to those regions on the criteria based solely for the plains being repugnant to the policies of the State Government and the resolutions of the Legislature, the reply is evaded. The reac tion of the people of Kumaon and Garhwal is simply brushed aside as totally mis conceived. 39. The latter aspect is not before the Court as an issue. As the Court has already explained that once the Legislature on two occasions had passed unani mous resolutions and on behalf of the State of Uttar Pradesh, its policy stands conveyed through a letter of the Chief Secretary to the Central Government that the regions of Kumaon and Garhwal being distinct in every aspect of their charac ter are entitled to statehood, this issue is not an issue for debate before the Court. Thus, for any State respondent to contend that the agitations of the people of Kumaon and Garhwal were either out of context or misconceived, is itself out of context and misconceived as no State officer as a matter of service discipline can go against the policy as has been determined by the Legislature of the State, A policy which has been determined by the State of Uttar Pradesh cannot be made the sub ject matter of an issue by the Executive itself. 40. In so far as the other aspects are concerned of not accepting the violations of human rights as alleged by the petitioners and to pretend "that the tragedies had not happened would be an unfair submission on behalf. of the State respondents. If there is any agency which at every given time was aware of what took place as a matter of a diarised account which ought to have been on record, it is the officials of the State of Uttar Pradesh in the various districts, ranges and divisions where the tragedies had occurred, and they are and will always be answerable. If there is any agency which at every given time was aware of what took place as a matter of a diarised account which ought to have been on record, it is the officials of the State of Uttar Pradesh in the various districts, ranges and divisions where the tragedies had occurred, and they are and will always be answerable. To deny the events would be an act of irresponsibility. The C. B. I. undertook an inquiry under orders of the Court, or for that matter, orders which were affirmed by the Supreme Court. But, it is not that the various officials, incharge were without information on what exactly was happening at every given minute and hour on the day of the tragedies. That a record may have been kept away by the district administration or the police administration or if the record was kept, was later made to disappear or was tampered with is yet another serious matter under consideration in these mat ters before the Court. The officials may pretend that they do not know, but it is not that the events did not happen. The nation was reading reports of the media on death by firing, pillage, rape and molestation of women or bodies being buried without being given to kinsmen and of the persons claimed as missing, later to surface as dead. Throughout the hearing of the case, at no stage, has the State Government gracefully accepted any of the issues which were raised by the petitioners : (1) the incidents at Khatima of persons dead and missing; (2) the firing at Mussorrie and Jhoolaghar; (3) the firing at Muzaffarnagar, Rampur Tiraha and Haridwar; (4) rape and molestation and robbing of women ; (5) detention of a bus load of women ; (6) post-remand detention of men, women and children at far of places other than the places of their arrest; and (7) tampering with, fabricating and destroying official records and evidence. The details to these are now available. 41. From the reports which have been filed so far by the C. B. I. in the course of their inquiry and investigation over the last one year or so, on each of the subject heads, a tragic and startling picture emerges on a prima facie assessment of the events which took place. The details to these are now available. 41. From the reports which have been filed so far by the C. B. I. in the course of their inquiry and investigation over the last one year or so, on each of the subject heads, a tragic and startling picture emerges on a prima facie assessment of the events which took place. The State Government or the State officials pretend ig norance or deny that the events ever happened. In this re&3 d it would be best to see the reports of the C. B. I. , and the report of the National Commission on Women, on what has been the assessment of these agencies on whatever is claimed by the petitioners and denied by the State Government. Firing, rape, molestation and robbery at Muzaffarnagar : 42. In the first report which was filed on behalf of the C. B. I. , dated 2nd November, 1994, at page 72 the report draws certain conclusions. The report is basically on the incidents at Muzaffarnagar. But, rather than narrate what has been written, it would be appropriate to reproduce the conclusions from the report: "conclusion: (i) The Commissioner, Meerut Divn. , had called Magistrates and SSP of the Division on 30-9-1994 to order arrangements for the movement of Uttarakhand enroute to Delhi. The Zonal IGPr Meerut and the DIG the meeting. It was decided in the meeting to set up points on the roads likely to be used by the rallyists in nagar and Saharanpur districts. Instructions were then their officers. Then joint report of the D. M. and the a meeting of all me District discuss the plan for law and rallyists through the Division , Meerut Range also attended check posts at a number of Haridwar, Roorkee, Muzaffar-conveyed by district heads to S. P. , Saharanpur. dated 2-KK 1994 to the Secretary, Home, Govt. of U. P. and the D. G. P. , U. P. mentions that as per instructions they tried to persuade the rallyists not to proceed further. In pur suance of the orders of a check post was established near O. P. Mohand on the Dehradun- Saharanpur Road on 1-10-94. 2 Buses of rallyists were stopped and they turned back after being advised by the authorities. 53 buses which came later at about 12 midnight were also stopped and checked for arms and ammunitions but nothing was found. 2 Buses of rallyists were stopped and they turned back after being advised by the authorities. 53 buses which came later at about 12 midnight were also stopped and checked for arms and ammunitions but nothing was found. The rallyists numbering about 3000 became restive, many of the young persons were under the influence, of liquor. It is further mentioned in the report that any use of force to stop the buses from proceeding further, as directed by the DIG Meerut Range, would have been illegal and without justification. In a wireless message recorded in the Control Room of Muzaffarnagar on 2-10-1994, DIG Meerut Range has given instructions to SSP Saharanpur that the rallyists should be stopped by using force. Some rallyists and other persons present have stated that they were told by different police officers that the rallyists would not be permitted to proceed beyond Rampur Tiraha near Muzaffarnagar town. Though the DIG Meerut Range has denied issue of instructions to stop the buses, the log book of District Control Room, Muzaffarnagar has recorded such a message to SP Haridwar at 21. 35 hours on 1-10-1994. At 21. 02 hours IG Meerut Range sent a message to. SP Harid war that the buses should be stopped. Another message was sent by DIG Meerut Range on 1-10- 1994 at 12. 00 hours to all the SSP of Meerut Range to stop the buses of the rallyists from going towards Delhi and intimate the number of persons detained every hour. Many of the Police officers said, it has come out in the state ments of the rallyists and witnesses, that they were required to stop the rallyists from proceeding to Delhi. (ii) 345 rallyists including 298 male and 47 female were arrested under Section 107/151, Cr. P. C. at about 11. 30 p. m. at the check point on Haridwar-Muzaffarnagar-Delhi Road at Rampur Tiraha on 1- 10- 94. After the arrest the rallyists were taken to Muzaffarnagar Police lines. A report was submitted to the SDM, Sadar to bind them down for good behaviour. However, none of the rallyists agreed to furnish per sonal bonds as ordered by the Magistrate. Subsequently at about 17. 00 hrs. on 2-10-94 another application was moved by the police that the rallyists had assured that they would maintain peaceful behaviour and should be released as they belong to far off places. However, none of the rallyists agreed to furnish per sonal bonds as ordered by the Magistrate. Subsequently at about 17. 00 hrs. on 2-10-94 another application was moved by the police that the rallyists had assured that they would maintain peaceful behaviour and should be released as they belong to far off places. On this second application SDM, Sadar ordered the release of 345 rallyists unconditionally. The rallyists have, however, stated that they were asked to vacate the Police Line at about 5. 00 p. m. on 2-10-94 and had not given any assurances. Accord ing to the District Magistrate and the S. P. the rallyists were offered food and water during the period of detention in the police line from the early hours of 2-10-94 till about 17. 00 hours of the same day but the rallyists refused to take the food: How-ever, many residents of Muzaffarnagar got together and brought food and water which was par-taken of by the rallyists. (iii) A clash between the rallyists and the Police took place in Narsan, Distt. Haridwar on 2-10-94. The rallyists, however, succeeded in removing the barricades which had been put up by the police at Narsan. Ms. Manisha Negi, who was one of the ladies, has alleged that the police snatched away a gold chain. In the statements the rallyists have also alleged firing and lathi charge by the police at Narsan. Some of the rallyists have stated that they did not seen the firing but heard the sound of firing. Tear-gassing and lathi-charge has been admitted by the police at Narsan. SDM and Addl. S. D. M. present at Narsan have also confirmed the lathi-charge and tear-gassing on their orders but have denied any firing. One person who has received a gun shot wound has stated that he was injured in Narsan. (iv) About 300 police were deployed at Rampur Tiraha where the police had blocked the road by parking trucks across it at about 9. 30 p. m. on 1-10-1994 DM and SP, Muzaffarnagar were personally present when about 50 buses of the rallyists from Chamoli reached there. The District officials have stated that the rallyists started violence by throwing stones after a Maruti van of the rallyists accompanying the buses collided with a truck while trying to cross the barricades. 30 p. m. on 1-10-1994 DM and SP, Muzaffarnagar were personally present when about 50 buses of the rallyists from Chamoli reached there. The District officials have stated that the rallyists started violence by throwing stones after a Maruti van of the rallyists accompanying the buses collided with a truck while trying to cross the barricades. The rallyists on the other hand have stated that they were lathi-charged, beaten, women molested and raped by the police without any cause. The district authorities have also stated that they resorted to lathi-charge after the stone throwing by the rallyists. It may be men tioned here that the barricades were put up on the highway where there are no street lights. No arrangements for lights had been made by the district authorities. Some of the witnesses present at the scene of occurrence have stated that a Maruti van of the rallyists had tried to pass through the barricade but the van was struck by lathis of the police and had gone out of control. Extensive damage was caused to the buses of the rallyists in the lathi-charge by the police and the head lights of the* vehicles were specially targeted. From the statements of the witnesses other than the rallyists it appears that the intention of the authorities at Rampur Tirana check point was not only to check the buses but also to delay/stop the movement of the buses. This also was the perception of the rallyists and it became the cause of the violence. (v) 17 women rallyists travelling in these buses have stated that they were molested by the police after the lathi-charge had been made and a large number of rallyists had been arrested. Following the lathi- charge, the rallyists appear to have been dispersed. Some lady rallyists have stated that they were molested in the buses by the policemen. Others have stated that they were subjected to rape. 3 of them al leged rape in the buses while 4 of them have stated that they were dragged to the nearby fields and the crime was committed there. All the incidents have taken place between 12 midnight and 03. 00 hours on 2-10-1994. Allegations have also been made against the police of forcibly snatching watches, chains and cash by policemen. No medico-legal evidence in support of the allegation of rape and molestation is forthconing because of the time gap. All the incidents have taken place between 12 midnight and 03. 00 hours on 2-10-1994. Allegations have also been made against the police of forcibly snatching watches, chains and cash by policemen. No medico-legal evidence in support of the allegation of rape and molestation is forthconing because of the time gap. 37 eye-witnesses among the rallyists have stated having seen women rallyists being molested. A few journalists who were present and one owner of a hotel, near the scene of occurrence have stated to have seen male police physically searching women rallyists. 70 other witneses who belong to the vil lages around Rampur Tiraha have stated that they were told by some women rallyists about the misbehaviour and molestation by the police the previous night. In their statements Shri Rajbal Sharma, Smt. Saittundri Devi, residents of village Medhpur, Smt. Kamini Sharma, Smt. Rakesh Devi, r/o village Rampur, Shri Rajpal Tyagi r/o Barla have stated that they met women rallyists whose clothes were torn and who complained of rape by the police. Some lady rallyists have complained about the use of abusive and indecent language by the ADM (E), Muzaffarnagar and the D. I. G. , Meerut Range. (vi) At about 05. 30 hour on 2-10-1994, 53 more buses carrying rallyists from Dehradun and the adjoining areas reached Rampur Tiraha. They joined the other rallyists numbering about 2000 who had been there from the previous night. Accord ing to the authorities these buses were also stopped and the inmates informed of the intention of the police to carry out searches. This group refused to be searched and became violent. They started brick-batting on the police. Repeated warnings were is sued but it had no effect and, therefore, lathi-charge and tear-gassing were resorted to. The brick-batting did not stop even after the lathi-charge and tear-gassing and then the Police opened fire with rubber bullets. The police was fired upon by some members of the crowd resulting in gun-shot injuries to five constables. 40 policemen sustained injuires due to stone throwing and brick-batting. As the situation was going out of control, Distt. Magistrate, Muzaffarnagar ordered firing on the crowd. Section 144, Cr. EC. had already been promulgated in the Distt. from 9-9-1994 till 8-10-1994 prohibiting gathering of more than 5 persons without permission and carrying fire arms and other weapons. According to Distt. 40 policemen sustained injuires due to stone throwing and brick-batting. As the situation was going out of control, Distt. Magistrate, Muzaffarnagar ordered firing on the crowd. Section 144, Cr. EC. had already been promulgated in the Distt. from 9-9-1994 till 8-10-1994 prohibiting gathering of more than 5 persons without permission and carrying fire arms and other weapons. According to Distt. records, 24 rounds were fired by the Police party consisting of 1 H. C. and 5 constables using. 303 rifles. Constable No. 90 A. P. Subhash Chand lodged an FIR that 10 rounds were fired by him from his stengun when he was surrounded by the rallyists. Out of the firing party of 6 lower sub ordinates, as many as 3 viz Head Constable Satish Chander No. 158 C. P. , Constable Chaman Tyagi No. 715 C. P. and Constable Maharaj Singh in their statements made to the CBI during the enquiry have stated that they had not been members of the firing party and have alleged that they were pressurised by senior officers to say that they had fired on the rallyists. Constable No. 90 A. P, Subhash Chand has also stated to the CBI that the did not know how to handle automatic weapons and has further stated that Shri. Jagdish Singh, DSP, C. O. Mandi, Distt. Muzaffarnagar with whom he was attached for security duty, was the one who had fired from his sten gun. 5 per sons were killed in the firing and 23 others had received gun shot wounds. Constable Subhash Chand has furhter stated that S. P. Muzaffarnagar had taken a rifle from one of the constables and had fired upon the rallyists. He had also seen Shri Nainwal, DSP and the gunners of the Addl. S. P. firing on the crowd with automatic weapons. (vii) It has so far not been possible to assess the loss or extent of damage caused by violence which occurred in Rampur Tirana on 1-10-94 and 2-10-94 as the buses which were damaged during the lathi- charge had returned to their towns/vil lages. From the statements of the rallyists, officials and by- standers, it is learnt that many of the 50 which reached Rampur Tiraha on the night of 1. 10-94 suffered damages. The damage was largely to the head-lights, windscreens and the glass-panes of windows. Allegations of the police deliberately damaging these vehicles have been made. From the statements of the rallyists, officials and by- standers, it is learnt that many of the 50 which reached Rampur Tiraha on the night of 1. 10-94 suffered damages. The damage was largely to the head-lights, windscreens and the glass-panes of windows. Allegations of the police deliberately damaging these vehicles have been made. There are also allegation by the railyists of snatching of watches, gold-orna ments and cash. (viii) During the enquiry the original records of the District Police, Muzaffarnagar were examined. During the examination it is found that a number of entries in the General Diary Issue Register of Distt. Muzaffarnagar were over-written. The Volume Numbers of 7 General Diaries issued to Police Stations have been changed. One page of General Diary of Police Lines, Muzaffarnagar numbering 479571 is found to be missing. White the General Diary contains 200 pages in duplicate, only 199 pages were found in this General Diary. This page pertains to 1-10-94. Over writing has also been noticed in the General Diary of P. S. Nai Mandi Distt. Muzaffarnagar about deployment of a lady constable to Rampur Tiraha. A report has also been recorded in the log book of Distt. Control Room, Distt. Muzaffarnagar on 3-10-94 to send the General Diaries of the Police Stations to the Confidential Office of the S. P. immediately. " 43. Not referring to the conclusion in detail bat while dealing with it under sub-head (vi), in Paragraph 33 at page 20 the C. B. I. records the statement of a Constable that he had not fired from a weapon from him and fired 10 rounds. The report also records that the Constable also stated that the Superintendent of Police of Muzaffarnagar fired 5 rounds from a rifle of a Constable and another Constable who was with the Additional Superintendent of Police, fired a burst from his AK-47 rifle. In a statement which was given by this Constable recorded earlier under pres sure, the C. B. I. records find support from absence of this Constables signature from the General Diary of P. S. Chhapar. 44. The details of rape and molestation are contained at page 22 to 27 of the first report. These reports are fortified by Annexures. The annexures accompanying the first report are in six parts, containing 391 pages. 44. The details of rape and molestation are contained at page 22 to 27 of the first report. These reports are fortified by Annexures. The annexures accompanying the first report are in six parts, containing 391 pages. Part III of the report records the gist of the testimony of witnesses, refers to the statements of the witnesses, whether of the victims or those who saw and heard incidents of rape and molesta tion recorded in Part III, of this report. As the ladies who were raped and molested had made a request to the C. B. I. that because of ignominy which they have to suffer, they got rid off their clothes, and they requested confidentiality that the trial be held in camera, the court does not consider it appropriate either to refer to the names of the victims or the witnesses in respect of molestation and rape. 45. In this regard, certain passages from the Report of the National Commission for Women are relevant as being a Commission comprised entirely of women. They were, in fact, in a better position to receive the impact of the mental shock and injury still being carried by the women who were subjected to rape and molestation. The passages from the report of the National Commission for Women are reproduced: "in view of the various newspaper reports regarding allegations of assault and atrocities on the women activists concerned with the Uttarakhand rally which was proceeding from the Uttar Pradesh Hills towards Delhi. On lst/2nd October, 1994, the Chairperson directed 2 members of the National Commission for Women to con duct a fact finding enquiry by visiting the spot of the alleged atrocities at Muzaffarnagar. A-2 Member team consisting of Mrs. Bonoj Senapati and Ms. Indira Misra, after informing the District and State level authorities, proceeded to the spot on 6th October, 1994. However, no public notice of the enquiry could be given, in view of the shortness of time. The team went to the site (Rampur Tirana) where the buses of the rallyists were stopped. The team heard and discussed the alleged incidents with about 30-35 persons including journalists, owner and chowkidar of the brick kiln. Then it visited village Rampur which is the nearest village from the site, where some alleged victims had found shelter. Thereafter the team also visited the Police Lines at a distance of about 7-8 kms. The team heard and discussed the alleged incidents with about 30-35 persons including journalists, owner and chowkidar of the brick kiln. Then it visited village Rampur which is the nearest village from the site, where some alleged victims had found shelter. Thereafter the team also visited the Police Lines at a distance of about 7-8 kms. from Rampur Tirana (where about 47 women had been brought after having been arrested at Rampur Tirana ). Thereafter the team heard all those (roughly 60-65) persons who came forward to give their statements. The versions of the incident from the District Magistrate and Superintendent of Police were also taken. ************************ Since after completion of the one day long on the spot enquiry this team could not find anyone who was directly affected by the alleged atrocities. It reached a preliminary finding that the allegations of atrocities on women as made out in the news papers, could not be substantiated. However, the team also recommended that their report should be treated. as a preliminary report and that it was necessary that full details regarding the alleged victims who reportedly belonged to Garhwal and other Hill regions of U. P. , may be obtained and they may be examined and only thereafter a final report should be submitted. (4) Accordingly, a 4 member NCW Team visited Gopeshwar, Srinagar, Tehri and Dehradun in the Uttar Pradesh hill area from 13th to 16th October, 1994. The team consisted of the following members: (1) Ms. Jayanati Patnaik, Chairperson. (2) Ms. Padma Seth, Member. (3) Ms. Bonoj Senapati, Member. (4) Ms. Indira Misra, Member Secretary. In addition, Ms. Anu Peshawarla, a lady laywer practicing in the Delhi High Court, accompanied the Commission to assist them on the legal side. The datewise tour programme in this context, as followed by the NCW Team is annexed (Annexure 1) to this report. (6) The main issue for examination before the Commission (and which is part of the mandate under Section 10 (l) (f) of the National Commission for Women Act, 1990 the text of which is at Anneuxre 3), was to look into the complaints relating to the illegal and unwarranted use of force on women and other criminal acts per petrated on their person, as alleged in the newspaper reports; and also to find out whether proper attention had been paid towards the observance. of necessary safeguards regarding physical handling of women for purposes of arresting/controlling them. The Commission also wanted to check whether any measures for providing relief to the lady victims on their return to their respective village/towns, were taken by the respective District machineries. (7) In view of the sensitive nature of the whole issue, the Commission took care to give publicity of the visit of the second team in the local and regional newspapers and through the TV. intimating their programme of visiting the areas where the alleged victims resided. They also took help from volunteers to contact the alleged victims to ascertain the truth. In the course of their 4-day long tour, the commission met not only the alleged victims and others who volunteered to give in formation on the atrocities but also prominent social workers, eye-witnesses, relatives and well wishers victims, activists such as Shri Chandi Prasad Bhat at Gopeshwar and" Shri Sunderlal Bahuguna at Tehri. They also met the District Magistrates and Superintendents of Police of the districts that were visited to ascertain what rehabilita tion/welfare relief measures, if any, relating to women victims were taken by the Dis trict Administrative machinery, to restore normalcy in their jurisdiction. (8) During their 4 day visit, the NCW met more than 100 persons. Statements of 72 persons were recorded individually, and of 30 person in groups. (9) From the version of the alleged victims and the eye-witnesses, the sequence of events appears to be briefly that, to submit their demand for a separate Uttarakhand State, to the Government at New Delhi, about 15,000 persons from the dif ferent districts of U. P. Hills were converging in buses at different times of the night between 11 p. m. of 1st October to 6-7 a. m. of 2nd October. The number of women in these was about 300-400. Some buses had few women. At Gurukul Narsen in Haridwar district, these buses were stopped. Most of the incidents relating to women took place at night at Rampur Tiraha in Muzaffarnagar district. (12) After listening to the alleged victims and the social workers belonging to these remote areas in the hill regions of Garhwal, the enquiry team was convinced that these women are steeped in ethical value, and that they are self respecting. In dividuals, struggling for day to day survival, who have to trek miles to fatch fooder and drinking water. (12) After listening to the alleged victims and the social workers belonging to these remote areas in the hill regions of Garhwal, the enquiry team was convinced that these women are steeped in ethical value, and that they are self respecting. In dividuals, struggling for day to day survival, who have to trek miles to fatch fooder and drinking water. Their idea to go to Delhi was only to peacefully demand a separate State, which they felt would improve the social and economic position of women in this region in the long run. They also thought that they could do some sight seeing and shopping in Delhi. They were therefore carrying some money with them. They had no idea of what was to happen to them en-route at Muzaffarnagar. These women were taken by surprise when they suddenly found themselves cordoned by policemen in uniform as well as plain clothees at Rampur Tiraha, who started hit ting them with dandas and the butts of their guns, using abusive language. Many of women expressed the opinion that the attack on them appeared to be pre-planned. (13) These buses were stopped at Rampur Tiraha, according to the District Authorities, to check whether the railyists were carrying fire-arms. The Commissions view is that if it had been the intention of the Administration to check the buses for free-arms, it could have been done peacefully and methodically and thereafter bus after bus could have been cleared for proceeding towards Delhi. Also, if the intention of the authorities was to search the rallyists for fire-arms, this could have been better done at the respective starting points. Instead, the rallyists were allowed to converge at Muzaffarnagar and thereafter stopped, brutally treated and subjected to atrocities perpetrated on them. On the whole the version given by the District authorities that checking of fire-arms in the buses was the only motive for stopping them, does not appear convincing. The evidence given by the victims and eye-witnesses establish that in the dead of the night, dozens of women suffered the harrowing experience of having their sarees and blouses pulled by the police. The incidents were so embarass-ing and traumatic that it took the Commission honours to infuse the women with enough confidence to narrate their woes. The evidence given by the victims and eye-witnesses establish that in the dead of the night, dozens of women suffered the harrowing experience of having their sarees and blouses pulled by the police. The incidents were so embarass-ing and traumatic that it took the Commission honours to infuse the women with enough confidence to narrate their woes. The Draupadi episode of the Mahabharat fades into insignificance, compared to the stripping and molestation of these women who are traditional in their approach and have strong cultural values. Their self respect and dignity enable them to face their existence with fortitude and when things go beyond their tolerance level, they would rather commit suicide than make any compromise. Though most of these women did not want to be named (as their honoured is dearer to them than their lives), they did share with the Commission their indignation, anger and disillusionment, with the Administrative system. (14) Some aspects of these incidents need special mention. The buses were stopped and kept waiting at Rampur Tiraha. Many of them had women passengers. These buses were attacked by men police personnel in uniform as well as in plain clothes. (The description of the persons in plain clothes was that they were hatta-katta, wore white clothes and held torches, guns as well as dandas. Some of them had their faces half covered with hand- kerchieves. They attacked the rallyists with dandas creating panic among the women. The bus from Gopeshwar which carried only. . . . . . . . according to their testimony, was not checked for fire-arms. The occupants of this bus have deposed before us that they joined the rally in a light mood, and as there was no question of carrying sticks leave along fire-arms. Before the women were sent to the police lines, they had to save themselves from the attacks of the police with dandas. Police personnel standing outside, snatched purses, ornaments, such as ear-rings, rings, gold bangles and gold chains and other cash from the women. Out of fear young girls were made to put on bindis by the elders to sug gest to the attacker that they were married. The elder women also made the younger girls hide under their sarees. (15) There were moments of silence in the night in the waiting buses and the lights were put off so that the women inside could hide themsleves. The elder women also made the younger girls hide under their sarees. (15) There were moments of silence in the night in the waiting buses and the lights were put off so that the women inside could hide themsleves. But even that was not allowed to continue and tear gas shells were fired into the bus. When the women ran out in a state of panic, they were further driven towards the sugarcane fields and there their sarees were pulled. One women deposed that as she was trying to run away from the lathi wielding police. In the darkness of the night, she hap pened to step on a heap of clothes and her leg got entangled in a saree. These clothes obviously belonged to the women rallyists who were stripped. She somehow disentangles her leg and ran from the site. She then fell into the nallah and soiled her own clothes. She somehow managed to reach Rishikesh. She was in a totally dis-shevelled state and people in Rishikesh asked her what was wrong. It is not difficult to imagine that if a women tries to flee at the dead of the night and wades through waist deep water to escape, she must have been in a state of great panic. What was it that created the panic. Several women on the site were seen running in their pet ticoats. The police also used abusive language including maa behn galies, called the girls bastards and threatened to rape them. Two women alleged the commission of rape. One of them said that some time in the night of lst. /early morning of 2nd. October, a tear gas shall fell into her bus. Everybody ran out but she being directly affected by the gas, was only half conscious and could not get out. Two police per sonnel then entered the bus which was the tenth bus in the row of buses, took off her clothes, and gang raped her. The lady fell unconscious and when she recovered, she found teeth marks all over the body and male semen lying on the floor. The other victim of rape stated that she was dragged into the sugarcane field and her private partes hit with a gun. Thereafter, she was also raped. The lady fell unconscious and when she recovered, she found teeth marks all over the body and male semen lying on the floor. The other victim of rape stated that she was dragged into the sugarcane field and her private partes hit with a gun. Thereafter, she was also raped. Another witness at Tehari stated that she saw a woman at she site who was trying to stop the police from hitting the boys, stating that they had killed her son and that she would not let them kill others. The police then fired a shot at her head and she collapsed. No one knows what happened to her thereafter. (16 ). . . . . . . . . "many of the women had their children and young girls with them and joined the trip partly to buy things in Delhi and to see the sights of Delhi like the Lal Kila etc. They have clearly stated that the Policemen on that night had taken positions behind the sugarcane fields and also on tree tops. We also saw blue marks (caused by dandas) on the legs of some women at Dehradun. In fact, one of them has received serious injuries on her thigh joint. One of the witnesses presented to us her torn clothes, averring that they were snatched and pulled and got torn in a tussle with a police person at Muzaffarnagar. Another women at Dehradun showed us her abnormally swollen breasts and how blue they had become as a result of police molestation. She added that this was the condition after taking treatment for more than a week. At Gopeshwar, one of the witnesses stated that she saw a women standing at the Muzaffarnagar Hospital at about 9-30 a. m. on 2nd October, naked, shivering and trying to cover herself with her hands. It has -already been mentioned that some were seen running in their petticoats. Most of the women have stated that the police personnel put their hands into their blouses, manhandled them, and snatched their gold chains or money. In brief, the night saw police behaviour at its worst. Not only were there no police women to handle the women railyists, the male police personnel on duty ran amuck molesting, using abusive language, looting, hit ting, threatening and raping women. In brief, the night saw police behaviour at its worst. Not only were there no police women to handle the women railyists, the male police personnel on duty ran amuck molesting, using abusive language, looting, hit ting, threatening and raping women. Witnesses and social activists lamented that all this had to happen on the 2nd of October, the birthday of Marjatma Gandhi, the symbol of non-violence. (17) Wherever victims were interviewed, there was anger and hatred regarding police behaviour and the young women victims of Gopeshwar were still in a state of trauma, as memories of the happening were still haunting them. One of the victims had been sent by her mother for treatment to a relatives house because she has still not come back to her normal mental state. (18) Most of the young women also did not want to narrate the incidents that had taken place. They were sorry they had already been labelled as muzaffarnagar wall and were finding it difficult to move in the bazar because of the fear of being teased. Married women feared criticism by their husbands and young girls were afraid that they would have difficulty in getting married. ********************* The combined daily reports which were being sent by the DM and SP in these districts to the State Government, however, did not contain any mention of women victims who had returned to their districts and what was being done for them. Even when, as many women and one particular witness has stated, he went to the SP, to lodge an FIR about the Muzaffarnagar atrocities, he directed him to go to Muzaffar nagar. Thus the approach was somehow to cover or to ignore the incidents, at Tehari, one of the women stated that she had been told by the Police on a previous occasion that they will not register crimes alleged to have been committed by the police. It is too much to expect that the women victims could get sympathetic treatment at a thana in Muzaffarnagar for lodging an FIR against the Muzaffarnagar Police which was harassing them. Even after the 2nd Oct. , the victims could not find any way of taking legal action as from 3rd 4th onwards. There was curfew in the Hill Districts and people could not stir out of their houses. Even after the 2nd Oct. , the victims could not find any way of taking legal action as from 3rd 4th onwards. There was curfew in the Hill Districts and people could not stir out of their houses. They also stated that the police threatened witnesses who were likely to come to the Commission. One of the social activists has stated that there was still a feeling of fear as police were posted in more than the requisite numbers at Tehri, to deter women approaching the NCW team. This was also the impression experienced by the NCW team. The shop-keepers and others "in the old Tehri town were afraid even to give correct directions to NCW con voy. (22) In view of the sensitive nature of the whole matter, the names of the per sons who appeared before us have not been revealed. However, the NCW has suffi cient evidence to support its findings. Copies of some of the incriminating af fidavits/statements are annexed to this report (Annexure 4 ). It is also our feeling that what was expressed to us by these women was only a fraction of what might have really happened, since on such matters women are by nature reticent. Secondly, many of them got dissuaded due to fear of police, or family pressures. It was the hints and tears of these who met the team which indicated that modesty prevented them from saying more. On the other hand, they expressed their disillusionment and disap pointment with the functioning of the whole system and its ability to give protection. Summary of the findings : (23) To sum up the discussions from para 11 onwards, it is our conclusion that on October 1/2, the District Machinery at Muzaffarnagar not only failed to ensure safety and security of the women present in the rally which was proceeding towards Delhi to present the demand for Uttarakhand, but became totally brutal and in human, in outraging womens modesty, hitting, attacking, molesting and looting them. The selection of the site for stopping the traffic was also extremely ill-advised and unfortunate. On the one hand, it prevented the women not desirous of proceeding further from retreating safely and on the other, it forced them to run for shelter in the sugarcane fields. Further the handling of the women at night was done without women police, which was highly objectionable. On the one hand, it prevented the women not desirous of proceeding further from retreating safely and on the other, it forced them to run for shelter in the sugarcane fields. Further the handling of the women at night was done without women police, which was highly objectionable. The behbaviour of the police towards the women, in most cases, was devoid of courtsey or help/on the contrary, they were deliberately cruel using dandas and hitting unarmed and innocent women sitting in side the buses, or on the road. In two cases, women were also raped, in one case by more than one police person. On the whole, the scene was one of uncontrolled rampage by the police who beat and molested the women, took off or tore their clothes and extorted money. One women rallyist was also reported to have been shot in the head, while trying to run. The attitude of the District Authorities including the Police was if they were trying to take revenge. A number of women told us that the policemen taunted them by saying you want Uttarakhand? Take this (beating) instead". If the authorities wanted to stop the rallyists to search for fire-arms, they could have done so at the respective starting points i. e. at Gopeshwar, Tehri or Dehradun. The intention of letting them come upto Muzaffarnagar and then stopping them is not clear. Recommendations : (24) In view of the foregoing paragraphs, we recommend the following : (1) Such of police personnel and District Authorities who are responsible for the commission of the atrocities on women in connection with the events at Muzaf farnagar, should, after due enquiry, receive punishment. It is our belief that the atrocities could not have been possible without tacit or overt support from the of ficers. The punishment may be departmental or of prosecution depending the result of the enquiry. (2) It is also observed that there was failure on the part of the district ad ministration to arrange for women police in adequate numbers, particularly when they had intended to stop the buses, they should have anticipated some arrests/search of women. While action may be initiated for this omission, general instructions should be issued so as to prevent such situations in future. While action may be initiated for this omission, general instructions should be issued so as to prevent such situations in future. (3) The District Magistrates and aware of their duties towards women Superintendents of Police should be made citizens, particularly in helping them to approach the administrative and police machinery even where the reports (the FIRs) in criminate the police-as the police machinery does not have a licence to violate the law. If the police is allowed a free hand just because of its brotherhood, the whole system will collapse. (4) The monetary loss incurred by women should be made good to them after due enquiry. (5) The State Government, to assuage the hurt sentiments of the women, should not ignore the Muzaffarnagar incidents as on^ of the many episodes but should carry out a serious review of the way of their functioning. In this context the Government of India in the Ministry of Home Affiars may like to carry out such a review and associate the Government of Uttar Pradesh with it. (6) Those women who had suffered injuries must also be given compensation to meet the cost of treatment and the loss of livelihood for the days on which the injuries incapacitated them for work. (7) Finally the Commission would also like to recommend that the women and child development programmes in the hill districts should be strengthened so as to provide necessary resources and guidance for income generation activities of women. It is noticed that the lives of most poor women in these districts consist of hard labour in collection of grass for the cattle, carrying headloads of wood and fetching water. Even educated women are seen to be left with no option but to spend their day only in these activities, since there are no other opportunities. Not much avenues of higher education and jobs are available to them, and hence the discontent. Some special avenues for income earning activities are needed in these areas, as opportunities for agriculture, industry and commerce are very ascarce in the areas. Sd/- Jayanti Patnaik, Chairpersons Sdl- Padma Seth, Member New Delhi Sd/-Bonoj Senapati, Member November 16, 1994. Sd/-Indira Misra Member Secretary. 46. The matters relating to rape, molestation, abuse, robbery of women rallyists at Rampur Tiraha and Narsan, continue to be recorded by the CBI, in the subsequent reports as: "sic-IV Lucknow. Sd/- Jayanti Patnaik, Chairpersons Sdl- Padma Seth, Member New Delhi Sd/-Bonoj Senapati, Member November 16, 1994. Sd/-Indira Misra Member Secretary. 46. The matters relating to rape, molestation, abuse, robbery of women rallyists at Rampur Tiraha and Narsan, continue to be recorded by the CBI, in the subsequent reports as: "sic-IV Lucknow. 25 to 48 Rape/molestation/abuse/robbery of women rallyists at Rampur Tiraha; Distt. Muzaffarnagar and Narsan ; Distt. Haridwar on 01/02-10-94 (CBI case RC-1 (S)/95/cbi/sic-IV/lko. to RC- 24 (S)/95/cbi/sic. IV/lko.) Of the 24 cases, in 21 cases the pace of occurrence was Rampur Tiraha, Distt. Muzaffarnagar and in 3 cases it was Narsan, Distt. Haridwar. In 7 cases, viz. , RC-1 (S)/95 to RC-7 (S)/95/sic. IV/lko. , it was alleged that the women folk who were unauthorisedly and wrongfully restrained/stopped at Rampur Tiraha were raped and robbed of their belongings. In the remaining 17 cases, it was alleged that the women were wrongfully/forcibly stopped by policemen/administration officials of Distt. Muzaffarnagar and subjected to indecent assault/abuse/molestation and robbing of their valuables, viz. , cash and jewellery by unknown policemen. The identity of the accused per sons who had committed these offences on the women rallyists was not known. Investiga tions, however, confirmed that in/cases viz. , RC-1 (S)/95/sic. IV/lko. to RC-7 (S)/95/sic. IV. /lko. , rape had been committed and they were subjected to abuse/robbery by unknown policemen. In the other 17 cases, it has been prima facie established that the women involved in these cases were subjected to molestation. The assistance of the experts of CFSL, New Delhi was also sought. Clothes worn by some of the women victims were sent for scientific examination. However, the experts could not find the traces of any semen or blood on the clothes. In order to fix up the identity of the accused persons the assistance of experts of NCRB, New Delhi was taken in preparing computer images of the suspects on the basis of physical features given by the victims. After making great efforts, CBI has been able to fix the identity of some of the accused. Other corroborative evidence is being collected. Inves tigation in these cases is almost complete. In some of the cases, the investigating officers have also submitted their Final Investigation reports and same are being processed for final legal scrutiny/decision. Reports under Section 173, Cr. P. C. will be filed shortly in the cases. Other corroborative evidence is being collected. Inves tigation in these cases is almost complete. In some of the cases, the investigating officers have also submitted their Final Investigation reports and same are being processed for final legal scrutiny/decision. Reports under Section 173, Cr. P. C. will be filed shortly in the cases. " On tampering with and destroying official records : 47. On tampering with records further details are available in the second report of the C. B. I. At page 36 after making investigation the C. B. I. records: "50. RC-24 (S)/95-DAD Dtd. 26/1/95 under Section 120-B/201/204/218, IPC : During the Preliminary Enquiry conducted by the CBI it came to light that some official documents had been tampered with. Prima facie evidence of overwriting, erasures and loss of General Diary in District Muzaffarnagar came to notice. The above mentioned case was registered and investigations have been conducted. During the investigations it has emerged that S. O. of P. S. Mansurpur, Distt. Muzaffarnagar reported the loss of General Diary bearing volume No. 404801 of the Police Station for the period 1-10- 1994 to 14-10-1994. A cross check of the Issue Register for General Diary maintained in the O/o Supdt. of Police, Muzaffarnagar revealed that the General Diary bearing No. 404801 had not been issued to P. S. Mansurpur but had been issued to Traffic Police on 26-9-1994. Volume No. 479801 had been issued to P. S. Mansurpur according to the Issue Register on 26-9-1994. Scrutiny of the General Diary of the Muzaffarnagar Police Lines for the period 25-9-1994 to 2-10-1994 has revealed that page No. 479571 is missing. The corresponding entry in the Issue Register as well as the certificate given by the Circle Officer on this Gene at Diary shows that it contained 100 pages in duplicate (i. e. it contained 200 pages in all ). An entry was. made at 0000 hrs. on 1-10-1994 by the Moharrir on duty that page No. 479571 of the General Diary was missing. Some alterations have also been discerned in the Issue Register which is being sent for expert scrutiny and opinion. In the General Diary of P. S. Nai Mandi entry No. 24 of 1-10- 1994, recorded at 1150 hrs. There seems to be an interpolation about the arrival and departure of Constable Rishi Pal and Lady Constable Neeta Sharma. Comparison with the carbon copy of this page indicates interpolations. In the General Diary of P. S. Nai Mandi entry No. 24 of 1-10- 1994, recorded at 1150 hrs. There seems to be an interpolation about the arrival and departure of Constable Rishi Pal and Lady Constable Neeta Sharma. Comparison with the carbon copy of this page indicates interpolations. Entry No. 78 made in the Police Lines, Muzaffar nagar at 20. 35 hrs. On 11-10- 1994 shows the deposit of 2 rifles with 100 rounds. The figure of the round appears to have been altered to 96. Some other additions regarding deposit of empty rounds at P. S. Chappar also appear to have been made. Statements of the concerned police officers have been recorded and original docu ments which have been seized are being sent for expert opinion to the Forensic Science Laboratory. Investigations continue to determine the persons responsible for the interpolations, erasures and forgery. " 48. In the third report of the C. B. I. on the aspect of tampering with the wire less log book, General Diary and other police record, the finding at page 24, is as below: "rc-24 (s)/95-DAD Dtd. 26-1-95 under Section 129 (B)/218 and 204, IPC : 23. This case has been registered on the basis of preliminary enquiry conducted by the CBI during which it came to light that wireless log-books of district Control Room, Muzaffarnagar and some General Diaries had been altered and tampered with. 24. Prima facie evidence of erasures, rewriting of police records and interpola tions in General Diaries have come to notice. Statements of the concerned police of ficers have been recorded and original documents which have been seized for obtain ing expert opinion of the Forensic Science Laboratory. Investigation continues to determine the persons responsible for the interpolations, erasures and forgery. " 49. In the report filed on 17 July, 1995 the C. B. I. , comes to an assessment that the preliminary enquiries revealed that the then Superintendent of Police, Muzaffarnagar, Mr. Rajendra Pal Singh, his Reader, S. I. Nautiyal, and others have entered into a criminal conspiracy to tamper with the official records. The report of the C. B. I. , at page 5, Item 24, reads: "24. RC-24 (s)/95-DAD Dtd. Rajendra Pal Singh, his Reader, S. I. Nautiyal, and others have entered into a criminal conspiracy to tamper with the official records. The report of the C. B. I. , at page 5, Item 24, reads: "24. RC-24 (s)/95-DAD Dtd. 26-1-95 under Sections 120-B, 218 and 204, IPC : This case has been registered on the basis of preliminary enquiry conducted by the CBI against Shri Rajendra Pal Singh, the then S. P. , Muzaffarnagar, his reader SI Nautiyal and others on the allegation that these officer entered into a criminal con spiracy to make alterations and erasures in the Wireless Log Books of District Con trol Room, Muzaffarnagar and General Diaries of Police Stations of Distt. Muzaffar nagar. Investigation in the case has been progressing and will be completed shortly. " 50. Drawing its conclusion after having some to a prima facie assessment that the log book, wireless messages, General Diary had been forged, erased, destroyed and tampered with, the C. B. I. , has come to the assessment that the official versions given out by the State Government that the rallyist were carrying fire-arms is incor rect and that this official version is false and was being given out solely for the purpose of taking up a defence that the police had resorted to firing as a self-defence. On this aspect as investigations were progressing, in the second report the C. B. I. , at pages 19 to 25 had come to a prima facie assessment that the matter relating to recovery of fire-arms from the rallyists at Muzaffarnagar does not in spire confidence as there is no public witness to this recovery and the F. I. R. has been lodged at the instance of the police, almost 10 hours after the recoveries have been made. No site plan had been prepared by the police. In the situation report sent by the district Administration and by the Inspector General of Police, Meerut Zone though it is mentioned that firing was done from country made pistols by the rallyists but no mention has been made about the recovery of fire-arms from the buses of rallyists or nearby places. Certain cartridges alleged to be found on the roadside and alleged to be carried by the rallyists could not be linked to the barrel due to damaged percussion cap nor have been fired from the barrel attributed. Certain cartridges alleged to be found on the roadside and alleged to be carried by the rallyists could not be linked to the barrel due to damaged percussion cap nor have been fired from the barrel attributed. The C. B. I. also records that the District Magistrate in his press conference on 2 Oc tober, 1994 held at 18. 00 hours had also not mentioned about the recovery of any fire-arms and ammunition. This aspect of the matter is mentioned by the C. B. I. , at page 25 of the report against Item No. 40 (iii ). 51. In the matter relating to the rallyists carrying fire-arms the C. B. I. comes to the conclusion that the official version as given by the State Government that the rallyists were stopped for checking fire-arms which they had been carrying and which in fact, had been recovered, the claim has been questioned. In the third report, at page 22, the C. B. I. comes to the conclusion that the evidence has emerged which casts serious doubts about the veracity of the recovery of weapons from the rallyists. The report of the C. B. I. reads : RC-4 (S)/95-DAD to RC-14) (S)/95-DAD Dt. 25-1-95, under section 25, Arms Act 20. 11 cases from Crime No. 151 of 94 to 161 of 94 were registered in PS Chhapar under Section 25, Arms Act about the recovery of country made pistols and used cartridges from the buses of the rallyists and from the nearby areas. In the 11 cases recoveries of the weapons have been made between 11. 00 hrs. and 13. 00 hrs. on 2-10-94. The FIRs were however lodged on 2-10-94 at 20. 30 hrs. at Police Sta tion Chhapar which is at a distance of about 5 Kms. from Rampur Tiraha. There has been delay in lodging the FIRs. None of the 11 country made weapons and cartridges has been recovered from any individual. No arrest was made in the 11 cases by the Muzaffarnagar Police. During investigation evidence has emerged which casts serious doubt about the veracity of the recovery of the weapons. Investigation in all the 11 cases has been completed and report under Section 173, Cr. P. C. is being submitted to the competent court. " 52. No arrest was made in the 11 cases by the Muzaffarnagar Police. During investigation evidence has emerged which casts serious doubt about the veracity of the recovery of the weapons. Investigation in all the 11 cases has been completed and report under Section 173, Cr. P. C. is being submitted to the competent court. " 52. In the report filed by the C. B. I. on 17 July, 1995 in the matter relating to fire-arms being carried by the rallyists the C. B. I. comes to the conclusion about they story of recoveries of country made pistol and used cartridges from the buses of the rallyists and side of the road, investigation has established that the recoveries were not actually made. On this aspect, on page 3, the report of the C. B. I. , reads : "4 to 14 RC-4 (S)/95-DAD to RC-14 (S) 95-DAD Dt. 25-1-95 under Section 25, Arms Act: These 11 cases relate to recovery of country made pistols and used cartridges from the buses of the rallyists and from the side of the road. Investigation has estab lished that the revcoveries were not actually made. In 3 of these cases, report under Section 173 of the Cr. P. C. has been filed in the competent court on 17-4-95. Departmental action for major penalty has been recommended against SI Harjeet Singh Cheema, Const. Angan Singh, SI Data Ram Azad, Const. Ram Kumar, Const. Gulzari Singh, Const. Birendra Singh, Const. Satya Pal Singh and Const. Ved Prakash. A report was sent to the Govt. of U. P. on 17-4-95. In the remaining 8 cases, prosecution of SI Bijendra Pal Singh SO PS Kandhla, Constables Brij Raj Singh, Satya Pal Singh and Cyan Chand of P. S. Kandhla and SI Brij Kishore, Consts. Anil Kumar, Karnal Kishore and Umesh Chand of P. S. Mansoorpur under Sections 182, 211 and 218, IPC and 25, Arms Act is proposed. A report requesting the Govt. of U. P. to according sanction for prosecution was sent to the Chief Secretary, Govt. of U. P. on 17-4-95. The sanction is awaited, though ac cording to press reports of 14-7-95, the Govt. of U. P. has accorded the sanction. " 53. Allegations of complicity attributed to the rallyists of being violent by firing from fire-arms and carrying unauthorised weapons like country made pistol is a version which was manufactured. of U. P. on 17-4-95. The sanction is awaited, though ac cording to press reports of 14-7-95, the Govt. of U. P. has accorded the sanction. " 53. Allegations of complicity attributed to the rallyists of being violent by firing from fire-arms and carrying unauthorised weapons like country made pistol is a version which was manufactured. The prima facie assessment of the C. B. I. is that the rallyists were not carrying fire-arms. This now gives rise to a prima fade assess ment that the firing was resorted to on unarmed agitationists. Firing at Mussoorie - Dead and Injured : 54. In Musorrie, at Jhoolaghar, on 2 September, 1994, the local population agitating in support of the Uttarakhand movement saw confrontations with the police. Even on behalf of the petitioners, it is accepted and, thus, there is no issue that there were tragedies on both sides. Many persons were injured, but of the recorded injuries at the hospitals, i. e. , at St. Marys Hospital, 24 were treated for injuries and at the Landaur Community Hospital, also, 14 were treated for injuries. Six persons of the public and a Circle Officer of the Rank of a Deputy Superinten dent of Police were killed. Among the public of the six killed, two were women. The petitioners alleged that the Deputy Superintendent of Police who was killed was shot by the police and the P. A. C. using 303 rifles. The C. B. I. dealt with this aspect initially in its second report at pages 40 and 41 and in the third report at pages 7, 8, 9 and 10. The C. B. I. suggests that the incidents at Mussoorie had hap pened because of a reaction to the firing which took place on the people by the police at Khatima, District Nainital on 1 September, 1994. The firing which took place in Mussoorie was on 2 September, 1994. The report of the C. B. I. , on the incidents at Mussorie reads: "2rc 6 (S)/95/sic. IV/new Delhi Dt. 25-10-95 under Sections 147, 148, 149, 353, 332, 338, 436, 307, 302, 395, 504, IPC 3/4 PPD Act and Section 7, Cr. Law Amendment Act: The incident of Mussoorie finds mention in the Writ Petition Nos. 29843/94 and 39921/94 in which it is mentioned that 7 persons were killed in the incidents of violence in Mussoorie on 2-9-94. The Dehradun Distt. Law Amendment Act: The incident of Mussoorie finds mention in the Writ Petition Nos. 29843/94 and 39921/94 in which it is mentioned that 7 persons were killed in the incidents of violence in Mussoorie on 2-9-94. The Dehradun Distt. Police had completed the investigation and charge-sheeted 14 persons. Pursuant to the orders of the Honble High Court dated 12-1-95, CBI has taken up the investigation. Investigation done so far has revealed that there were protests against the Khatima firing on 1-9-94. The atmosphere had become tense in Mussoorie. Agitators had forcefully occupied a Hall owned by the Municipality near Jhulaghar on 23-8-94 and a relay fast was being conducted in small batches inside this hall. On 30-8-94 the local administration tried to unlock the office of SDM Mussoorie which had been forcefully locked earlier by the local agitators. The arrest and removal of 5 per sons on the morning of 2-9-94 from the above mentioned Hall by the newly posted S. O. Mussoorie led to further demonstration and arrest of 43 persons. A procession consisting of women, children and persons of all ages came to Jhulaghar, some of whom were shout ing slogans. Following stone throwing the police already deployed there resorted to teargas and lathi charge. The crowd demanded that the Hall should be restored to them. Some members of the crowd led by women entered the hall and started removing the arms and ammunition and threw out the belongings of he PAC personnel who had moved camp into the Hall. Some articles belonging to the PAC were also set on fire. This led to firing by the police. Dy. S. P. Sh. Uma Kant Thpathi was present in the Hall and suffered injuries on his rights hand. As a result of firing 6 people died including two women viz. , Smt. Belamti Chauhan and Smt. Hansa Dhanai. The injured Dy. SP who went to the hospital for treat ment was killed outside the St. Marys Hospital Mussoorie. It was also revealed during investigation that during arrests, in the Hall of municipality mentioned above, the local police had seized certain articles including a donation box and deposited the same in the Malkhana of P. S. Mussoorie. 48 persons were arrested and transferred to Bareilly Jail and were released on 6-9-94. Investigation in this case continues. " 55. It was also revealed during investigation that during arrests, in the Hall of municipality mentioned above, the local police had seized certain articles including a donation box and deposited the same in the Malkhana of P. S. Mussoorie. 48 persons were arrested and transferred to Bareilly Jail and were released on 6-9-94. Investigation in this case continues. " 55. In its seventh report the C. B. I. has found that all the seven persons were killed. 48 private persons and 23 PAC/policepersonnel recieved blunt weapons in juries, 31 persons received bullet injuries. This data has been compiled from the medical reports, statements of doctors, and large number of witnesses. Reference to this can be had at, page 6 of the Seventh report of the C. B. I. Shooting at Khatima - Dead and injured : 56. At Khatima, district Nainital, according to the official estimates, a crowd of 10,000 to 15,000 had gathered and taken out a procession shouting anti-police and anti-Government slogans in from of Police Station Khatima at about 11. 10 a. m. The cause is explained that during the week before the procession, a house to house search was being conducted and men folk among the resident of Khatima were dragged out from their houses and were being taken for police questioning. This-detail has been given in writ petition No. 40216 of 1994 - Mohan Chand v. Union of India and others. The agitation, which was localised to Khatima took its form on 1 September, 1994 and was perhaps a reaction to the indiscriminate ques tioning of local people and more so being dragged to the police station for ah inquisition. The C. B. I. in its second report at page 14 records, thus : 26. RC. 26 (S)/95/lko. Dtd. 27-01-95 under Sections 147,148,149, 307, 332, 333, 336, 436, 427, 504, 323 and 324-IPC, Khatima, distt. Nainital *************** (iv) The evidence (oral and documentary) collected reveals that a procession comprising of about ten to fifteen thousand persons was taken out on 01-09-94 which was peaceful but the police resorted to firing without any provocation in which three persons were killed and four persons namely S/shri Dharmanand Bhatt, Gopi Chand, Param Jeet Singh and Ram Lal are still missing. There are 47 accused persons in this case. Some of them remain to the examined. There are 47 accused persons in this case. Some of them remain to the examined. The weapons used in the firing are to be examined by C. F. S. L. experts. Investigation is continu ing. " 57. Thus, it shows that prima facie only because the persons agitating were in large numbers, but otherwise peaceful, the police resorted to firing. Initially it was reported that three persons were killed and 4 were missing. Later it turned out that the four, in fact, were not missing, but, had been killed. As the investigations con tinue on the incidents at Khatima, in its third report at page 5, the C. B. I. records : " (e) Writ Petition No. 40216 of 1994 : This writ petition is about the incident of firing at Khatima. Details of protest proceedings and police firing on demonstrators on orders of D. K. Tripathi, SDM are given. Presence of SDM, DM along with others is claimed. Cameras of some media persons it is alleged were snatched. SLR. Stengun and sophisticated weapons were used for firing by police. It is mentioned in the writ petition that 6 persons died and children and women were assaulted. Name of ex-captain and freedom fighter Sh. Karam Chand has been highlighted as one of the injured. It is alleged that 250 per sons were injured in the firing. Police admitted the death of 3 persons, but the dead-bodies were not handed over to relatives. It has been stated that treatment was not given to the injured. Further that the Police case registered on the allegation of firing is false and that no report of the processionists was accepted by the police. 2 com plaints were lodged by 2 different persons but no action was taken by the police on them. One of the complainants ex-Captain Sher Singh was detained in Varanasi jail. A written complaint of Smt. Leela Devi that her husband is missing is also men tioned. On this writ petition CBI registered RC 26 (S)/95/sic. IV/lucknow on 27-01-95 under Sections 147, 148, 149, 307, 332, 333, 336, 436, 427, 504, 324 and 323, IPC. " 58. Thus, the C. B. I. has come to the conclusion that a Stengun and sophisticated weapons were used for firing by the police. Children and women were as saulted. On this writ petition CBI registered RC 26 (S)/95/sic. IV/lucknow on 27-01-95 under Sections 147, 148, 149, 307, 332, 333, 336, 436, 427, 504, 324 and 323, IPC. " 58. Thus, the C. B. I. has come to the conclusion that a Stengun and sophisticated weapons were used for firing by the police. Children and women were as saulted. All the three persons who had died, which deaths the administration now admits, the deadbodies were not handed over to the relatives. 59. In its sixth report, the C. B. I. discovers further facts on the incidents arising out of Khatima at page 10 the C. B. I. records: "rc 26 (S)/95, Lko. Dtd. 27-1-95 under Sections 147,149, 307, 332, 333, 336, 436, 427, 504, 324, 323, IPC (PS Khatima, distt Nainital) This case was taken over by us from the State Police since 3 persons had died and 4 were reported missing. During investigations, out of 45 persons arrested on the spot and 2 persons who surrendered in the Court later and 27 persons brought in later on in the inves tigation by the UP police (thus making a total of 74 persons), 69 persons have been examined by the CBI. Evidence indicates that 4 persons were not present on the spot and were arrested from their houses later on. About other persons, further in vestigation is still going on. Report of Forensic Experts is awaited. In respect of 3 persons, who were shown by local police to have been killed during police firing, their deadbodies were disposed off at Majhola (10-15 kms. from Khatima town) in the presence of 4 local witnesses. During our investigation, local police has taken a stand that the 2 deadbodies of Hindus were cremated and 1 deadbody of a Muslim was buried because nobody could be informed nor anybody claimed these bodies because of curfew in Khatima town after the police firing. Rela tions of deceased persons, however, claimed that they requested handing over of deadbodies in Pilibhit (where post- mortem was conducted) but the bodies were not handed over to them. Investigation in this case is in progress. " 60. The C. B. I. has now come to a prima facie conclusion that three persons who were shown by the local police as killed during the police firing, their dead bodies were disposed of at Maihola, (10-15 kilometres from Khatima ). Investigation in this case is in progress. " 60. The C. B. I. has now come to a prima facie conclusion that three persons who were shown by the local police as killed during the police firing, their dead bodies were disposed of at Maihola, (10-15 kilometres from Khatima ). The bodies were not handed over to the relatives or the next of kin. 61. In its seventh report at page 13, in reference to the four persons who were suggested to be missing, the C. B. I. records : "investigation has revealed material to suggest prima facie that they were also killed in police firing and their deadbodies were disposed of without intimation to their families". 62. The police firing at Khatima is assessed in the report filed by the C. B. I. , on 17th July, 1995. The procession of more than ten thousand persons, the C. B. I. , men tions in its report, was proceeding on 1st September, 1994 from Ramlila ground Khatima and was on its way to present a memorandum to the Sub-Divisional Magistrate, Khatima. While the procession was passing Kotwali the crowds were fired upon. 63. In its report of 24th July, 1995, dealing with basically matters relating to Khatima, the C. B. I. , records : "honble High Court of Judicature at Allahabad vide its order dated 17-7-95 had directed the CBI to place before it on 24-7-95 the prima-facie assessment of the CBI in relation to the Khatima incident. The desired report is being submitted ac cordingly. In the Khatima incident-three people, viz. Bhgwan Singh Sirola, Pratap Singh and Saleem were reported by the State Police as having been killed in the Police firing. How ever, in the Writ Petition No. 40216 of 1994 filed before this Honble Court, it was men tioned by the petitioner that four persons viz. Dharmanand Bhatt, S/o Sri Moti Ram Bhatta, s/o Umarkala, PS-Khatima, district Nainital ; Gopi Chand, s/o Sri Pratap Chand, r/o Ratanpur, Chand Colony, Jhankat, Khatima, District Nainital; Paramjeet Singh, s/o Sri Hari Nandan Singh, r/o Rajeev Nagar, PS Khatima, district. Nainital and Ram Pal, s/o Sri Babu Ram, PS Nawabganj, district Bareilly were reportedly missing/illegally detained. Investigation conducted so far by the CBI has rvealed that these four missing persons had actually died in police firing at Khatima on 1-9-94. Nainital and Ram Pal, s/o Sri Babu Ram, PS Nawabganj, district Bareilly were reportedly missing/illegally detained. Investigation conducted so far by the CBI has rvealed that these four missing persons had actually died in police firing at Khatima on 1-9-94. There is also reason to believe that these four persons were killed in Police firing outside the premises of P. S. Kotwali Khatima, whereas the SDM of Khatima had ordered firing in the premises of P. S. Kotwali Khatima only on 1-9-94. It has also been found that the deadbodies of these four persons were disposed off at the behest of some police officers. The investigating officer will file a report under Section 173, Cr. P. C. after he is satisfied that the material collected makes out prima facie case against individual public ser vants and others. To this effect he is making all out efforts. " 64. Thus, now it is clear that it was not three but seven who had died as a result of police firing. The police had incorrectly shown four persons to be missing when the deadbodies were disposed of at the behest of some police officers. General mass arrests and post-remand detention irregularities : 65. Between 18 August, 1994 and 9th December, 1994 large scale arrests were made during the agitations by which the people of Kumaun and Garhwal had ob jected to the reservation policy of the State of U. P. and were claiming a separate State of Uttarakhand. This aspect is confirmed not only from the C. B. I. reports reference to which may be had from the second report, pages 2 and 3, but also from the details submitted by the Government Advocate of the State of U. P. In the dis tricts of Chamoli, Tehri Garhwal, Uttar Kashi, Almora, Dehradun, Nainital, Pithoragarh and Pauri Garhwal, 20,522 arrests have been made. Out of these, 19,143 were released the same day. 1,379 were sent to jails. 398 persons were sent to jail at far off places, away from the hills. Those arrested in the hills were sent to places like, Bareilly, Gorakhpur, Azamgarh, Varanasi, Mainpuri, Fatehgarh, Jalaun, Banda, Ghazipur, Ballia and Unnao. Out of these, 19,143 were released the same day. 1,379 were sent to jails. 398 persons were sent to jail at far off places, away from the hills. Those arrested in the hills were sent to places like, Bareilly, Gorakhpur, Azamgarh, Varanasi, Mainpuri, Fatehgarh, Jalaun, Banda, Ghazipur, Ballia and Unnao. It is not understood why these persons who had been taken in custody as having taken part in agitations, assuming that they had violated the law relating to peace and public order and were not convicts, had to be flung into jails which were almost 300 to 800 Kms. away, from the hills or from the places of their arrest. 66. That the Constitution gives a guarantee to a citizen that upon being ar rested he shall be produced before the nearest Magistrate within 24 nours of such arrest, the matter does not ceased there. A peson whose liberty has been deprived pending trial, even prior to being remanded into custody, must have an opportunity to consult a lawyer of his choice and to apply and be released on bail. 67. Life and liberty can only be curtailed in accordance with the procedure established by law. This is Article 21 of the Constitution of India. But even a per son whose liberty is curtailed, cannot be subjected to arbitrary arrest or detention in custody without certain pre-requisite guarantees as under the Constitution. A person who is arrested and detained in custody is to be informed of the grounds of such arrest, is to be given immediate access to "consult" and be defended by a legal practioner "of his choice", when arrested and detained in custody he is to be produced before the "nearest Magistrate". The principles which are contained in the Constitution of India giving a person accused or an offence, the right to be defended by a pleader, was an obligation of the law even under the Code of Criminal Procedure of 1898 under sub-clause (1) of Section 340. This right which has been given to an accused, is reserved under Section 303 of the Code of Criminal Procedure, 1973. These are the basics of protecting human rights of a citizen. These are the fundamental rights conferred to a citizen under Articles 21 and 22 read with Section 303 of the Code of Criminal Procedure, 1973. This right which has been given to an accused, is reserved under Section 303 of the Code of Criminal Procedure, 1973. These are the basics of protecting human rights of a citizen. These are the fundamental rights conferred to a citizen under Articles 21 and 22 read with Section 303 of the Code of Criminal Procedure, 1973. There are other provisions of law which throw light on the aspect that an accused at the pre-trial stage is not to be moved away so that he be under a handicap, inhibition or in difficulties in consulting a lawyer of his choice, of being produced before the nearest Magistrate or arranging for his liberty even though it may be on bail. 68. While without an order from a Magistrate any police officer may arrest a person without a warrant, regard being had to certain circumstances which aspect has been provided for under Chapter V, particularly Section 41 of the Code, simultaneously the law casts an obligation on the person who has the authority to arrest any person without a warrant, to communicate to the accused full particulars of the offence for which he is arrested and other grounds for such arrest. Should the ar rest be without a warrant of a person accused of a non-bailable offence, such an accused is to be informed that he is entitled to be released on bail and that he may arrange for sureties on his behalf. This is provided for in Section 50 of the Code. The phrase which occurs in sub-section (2) of this section, "that he is entitled to be released on bail and that he may arrange for his sureties on his behalf, is very relevant. While the Constitution of India guarantees that a person arrested will be produced before the nearest Magistrate within 24 hours, this obligation is reiterated on a police officer, and an arrest beyond the constitutional guarantee cannot be had in the absence of a special order from the Magistrate under Section 167. Thus, the right to be. While the Constitution of India guarantees that a person arrested will be produced before the nearest Magistrate within 24 hours, this obligation is reiterated on a police officer, and an arrest beyond the constitutional guarantee cannot be had in the absence of a special order from the Magistrate under Section 167. Thus, the right to be. informed of the grounds of arrest and the right to consult a lawyer and to have an opportunity to be released on bail and the right to be produced for remand before the Magistrate within 24 hours of such arrest and to be entitled to be released on bail and to be able to arrange for sureties, are stipula tions of law which require detention of a citizen only on a formulated and civilised norm which are not to vary upon the whims and the caprice of a person who has the authority to make an arrest. 69. The point which the Court is making is that though a person may be ar rested without a warrant but the law enjoins that given an occasion he has right if he commits himself to the law to be set free and enlarged on bail as soon as pos sible. Between the place of arrest and the Court to which the accused will be remanded there has to be a proximity and this proximity continues so that the accused in custody is in a position to consult a lawyer of his choice, to be produced before the nearest judicial Magistrate. 70. After remand to custody has been obtained and if investigation cannot be completed in 24 hours the law facilitates an accused to be detained in custody so long as they do not furnish bail. Certain expressions in Section 167 of the Code which require a detaining authority to forthwith transmit to the nearest Judicial Magistrate the entries of the case diary relating to the case and at the same time forward the accused to such Magistrate, enjoing that a person must not be in cus tody for a longer period than is necessary. Certain expressions in Section 167 of the Code which require a detaining authority to forthwith transmit to the nearest Judicial Magistrate the entries of the case diary relating to the case and at the same time forward the accused to such Magistrate, enjoing that a person must not be in cus tody for a longer period than is necessary. If the person has to be remanded to custody for a detention which is beyond 24 hours, then, he is to be produced before a Magistrate, whether the latter has the jurisdiction or not, and the detention of an accused in custody may be had as such Magistrate thinks fit for a term not exceed ing 15 days in whole. Should such a Magistrate not have the jurisdiction to try the case and commit it for trial, but considers this detention necessary, he may order the accused to be forwarded to the Magistrate having such jurisdiction. Depending upon the gravity of the offence the period of detention at the pre-trial stage varies. But the stipulation in law that the accused shall be detained in custody so long as he does not furnish bail" is not without meaning. This expression occurs in Section 167 of the Code. The law aids an accused to reach for bail pending trial. Certain expressions in Section 167 where a person may need to be detained when an inves tigation cannot be completed within 24 hours, are very fundamental in their mean ing when the record is to be transmitted to the nearest Magistrate forthwith and further detention is to be considered by a Magistrate whether he has or he has not, the jurisdiction to try the case and the accused is to be detained in custody only so long as he does not furnish bail. The cumulative effect of the spirit of Articles 21 and 22 of the Constitution of India and Sections 50, 57 read with Section 167 of the Code is that at the pre-trial stage an accused must be detained in custody at a place which is nearest to the alleged crime or the place of arrest. Each word under the Constitution or the Code is pertinent, relevant and permits of an arrest and deten tion only in accordance with the procedure established by law. The procedure can not be short-circuited. Each word under the Constitution or the Code is pertinent, relevant and permits of an arrest and deten tion only in accordance with the procedure established by law. The procedure can not be short-circuited. It is for this reason that the Code mentions that immediately upon arrest an accused is to be produced before the nearest Magistrate, whether he has or has not the jurisdiction. An accused may be detained in custody so long as he does not arrange for bail. But to apply for bail and to press the law for its process there has to be an affinity between the accused and the place from where he can seek release from custody on bail. Further detention upon rear and may be had from the nearest Magistrate but release on bail can only be facilitated from an area-in which the accused is known for no body would offer a surety for a stranger and as soon as sureties are arranged an accused has a right to furnish bail and have it considered forthwith. 71. The mechanics of Section 167 putting an obligation upon the authority detaining an accused or a right conferred on the person detained, would have no meaning, in principle, if a person is arrested in Agra and detained in Varanasi. If a person is arrested in Agra, whether it is a remand order or it is a detention beyond the order of remand, the nearest Magistrate, whether he has or has not the jurisdic tion, in general, has to be the place in proximity to the place where the arrest has been made. With this principle understood, other provisions of the Code provide the same pattern either for detaining a person in prison or to facilitate his release upon furnishing bail. Section 122 of the Code read with Sections 106 and 117 also reflect on a situation where the accused may have been booked into custody for keeping peace and public order or maintaining, good behaviour, as the case may be. He would be committed to prison until such period expires or until within such period he gives security to the Magistrate or the Court which made the order re quiring security. But when security is furnished to the satisfaction of the Magistrate or the Court, release of an accused on bail is to be considered without delay. 72. He would be committed to prison until such period expires or until within such period he gives security to the Magistrate or the Court which made the order re quiring security. But when security is furnished to the satisfaction of the Magistrate or the Court, release of an accused on bail is to be considered without delay. 72. In this context, the arrests made in the hills and the detention at far off places at the southern tip of the State of Uttar Pradesh was paying lip service to the law and against the spirit of the law that no person shall be deprived of his life and liberty except by procedure established by law. It is unlikely that any of the civil rights agitators in Kumaon and Garhwal, with the exception of one or two, by and large all detained under Sections 106 and 117 of the Code could have any effective consultation from a legal practioner of their choice in Ghazipur when the arrest was made in the district of Nainital. It will be difficult to obtain bail by furnishing surety or, for that matter, security, as the case may be, in Varanasi when those who were detained belonged to Garhwal. 73. Human rights were violated by making these large scale detentions of the persons in the hills and transporting them down to the plains and such large num ber of them included men, women and children. Children, in any case, if it is a matter of keeping peace or maintaining good behaviour, cannot be subjected to an order of security but upon a bond which may be executed only be a surety. The manner in which the people were booked for arrest in the hills and detained on the plains, is highly objectionable, irregular and cannot be justified under the law. These persons arrested in the hills and detained in the plains some of them almost 1,000 Kms. away from the place of their arrest, could never have the advantage of being produced before the nearest Magistrate nor could they consult a lawyer of their choice or arrange for a surety or security. If they required consultation with a legal practioner of their choice, for them, he would have to come from the hills. away from the place of their arrest, could never have the advantage of being produced before the nearest Magistrate nor could they consult a lawyer of their choice or arrange for a surety or security. If they required consultation with a legal practioner of their choice, for them, he would have to come from the hills. It is unlikely that in the strangeness of the plains they would have access to arrange for security or be familiar with any person who will vouch for their surety. The Court also does not understand why the C. B. I. had to make a comment on this aspect that the arrest and detentions so made were in order. If the report of the C. B. I. that the persons were arrested in the hills and detained in the plains is cor rect, the C. B. I. should not have made a comment that the detention was in order. The opinion of the C. B. I. in this regard justifying the detention of person on the plains after arrests made in the hills was not appropriate because it does not fit into the scheme of the law that production before the nearest Magistrate and the right to consult a legal practitioner of choice, is an obligation of the law and cir cumstances must not be created that a person detained may not have access to a lawyer of his choice, can neither arrange nor facilitate placing a security or produc ing surety before a Magistrate who may not be the nearest Magistrate and the Court may not have the jurisdiction to try the case. 74. It is not the cause of the arrest which the Court is questioning. While this court is not enquiry why the arrests were made but the manner in which the people of Kumaon and Garhwal have been detained by being brought down from the hills to the plains, is an occasion which clearly eroded their basic rights under the Con stitution and violated their human rights available to them under the Code of Criminal Procedure, 1973, and the Protection of Human Rights Act, 1993. 75. On reliefs sought in the writ petition, on the many writ petitions before the Court, including those which had been transferred from the Supreme Court, the submissions were diverse and varied, but very emphatic. 75. On reliefs sought in the writ petition, on the many writ petitions before the Court, including those which had been transferred from the Supreme Court, the submissions were diverse and varied, but very emphatic. On behalf of the petitioners, putting the reliefs sought from the Court with the submissions, were that (1) a Government during whose regime such carnage, arson and blatant violation of human rights has occurred, has no moral, ethical or constitution right to government and such a Government should be dismissed; (2) all the officials who were directly involved with administration and the law and order situation, whether in the districts, the Commissioners divisions, the respective police range, or were connected with monitoring the situation including those posted at the helm of government must be forthwith dismissed from service as on this score the Government has done nothing, as of date ; (3) exemplary compensation be paid to all those who were subjected to the carnage by the State administration which took form of illegal detention, injuries, molestation and rape of women and death by firing ; (4) the regions of Kumaon and Garhwal, backward as they are, as a whole need to be compensated from a Government who has no desire to accept them either as peoples or the areas where they reside and instead inflicts injuries on these peoples when they claim their identity and statehood, as assurance already guaranteed by the State of Uttar Pradesh itself; (5) as there was been contravention of human rights and fundamental freedoms by the agencies of the State, the Court has an obligation to grant the relief and the defence of any sovereign i immunity is not available to the State, (6) the High Court declare the claim of statehood of the areas of Kumaon and Garhwal as a State known as Uttarakhand. 76. 76. During the course of the proceedings finding that the C. B. I. , was taking more time than was necessary to give its final report and, in fact, at one stage was resisting the request of the court to increase the pace of investigation and had, in fact, even resisted that its report be not made public, which plea the Court had rejected by its order of 6th April, 1994, the petitioners moved an application that they were disgusted by the manner in which the State of Uttar Pradesh and the C. B. I. were taking the whole matter lightly. It was submitted, that the State Government has at every given time been aware of what had gone on but pretend ing that it does not only shows an approach of callousness and insensitivity not to acknowledge that a tragedy has occurred and not accept the responsibility for the incidents which took place upon which the High Court directed the C. B. I. , to in quire by its order of 7th October, 1994. It was contended that the State Govern ment should have by now suspended all the officials, rank and file, who were posted at the various divisions where the tragedies had occured and instead the State Government watches the situation as an abject and a silent spectator. For the C. B. I. it was contended that apart from naming the small fry, it was deliberately shielding and avoiding the responsibility of the high officials, whether vacarious or otherwise, when, at no time, they could be absolved by claiming that they were unaware on that had happened. To the various pleadings on the record of the officials of the State Government that they are unaware of rapes and molestations of women when the women who are victims had themselves filed affidavits before the Supreme Court, the action of the State Government in not proceeding against the officials, incharge of the various administrative divisions, showed and continues to show an attitude of protectionism, against the norms of a responsible Government. Thus, the petitioners contended that poor as they are as people coming from the hills, an acknowledge backward region, it was not that, in their poverty they have lost their self respect. Thus, the petitioners contended that poor as they are as people coming from the hills, an acknowledge backward region, it was not that, in their poverty they have lost their self respect. In the hour of their tragedy that their women had been molested and raped, it should not be misunderstood that their self respect has been raped and if the State Government pretends that it does not know what had happened and if the C. B. I. will take so much time to report to the Court, then, they do not desire any compensation from the hands of a State Government which is so insensitibe to the tragedies which the hill people have faced, which according to the petitioners,. has not been seen since General Dyer ordered firing on the congregation at Jalianwala Bagh. The petitioners submitted that in disgust they do not want to touch any compensation of a Government which is dirty in its administration. 77. Before the Court notices the entire case in its perspective, the last submis sion of the petitioners, the Court views as a reaction or disgust in the petitioners in losing patience finding that the Government, whether the State or the Central, aware that the tragedies had occurred, the events in reality beyond function, yet there was no response in taking action against those who were responsible for it. After all some one has to take the responsibility. 78. Learned Senior counsel on behalf of the petitioners, Mr. L. P. Naithani, submitted that the moment the Additional Solicitor General of India had acknowledged before the Court, even at the time when the reports of the C. B. I. lay inside sealed covers that a prima facie assessment has already been gathered that as a result of firing by the police in the hills of Kumaon and Garhwal and at Muzaffarnagar, several persons had been killed, including one police officer, and otherwise amongst the agitating civil rights demonstrators hundreds were detained, women were molested and raped, evidence was destroyed when police records were tampered with, changed, rewritten, pages torn out of the record books, and the reality was before the Court and the rest was only a matter of detail. Mr. Mr. L. P. Naithani, Senior Advocate, took the Court through various decisions of the Supreme Court to make a point that the people who had suffered because of the agitations which took place in Kumaon and Garhwal and the tragedies which took place at Mussoorie, Khatima, and Muzaffarnagar were entitled to a very heavy and exemplary compensation, for the violation of their fundamental but constitutional rights. The variation could only be on the degree of the injury or the tragedy. His contention was that the examples he was citing before the Court were precedents only for the purposes that constitutional law has developed to the extent that for the violation of human rights, the Supreme Court has made it clear that whether by it or the High Courts, the grant or the award of compensation is an appropriate relief. Prima facie assessment not proof, he contended, is the measure of compensa tion, and damages may yet be awarded on proof. Compensation and/or damages in Public Law : 79. The award of damages, as a claim in public law for compensation for contravention of human rights and fundamental freedoms, guaranteed in the Constitu tion, is an acknowledge remedy for the enforcement and protection of such rights. The award of damages by resorting to a constitutional remedy provided for the enforcement of a fundamental right is distinct from and in addition to, the remedy in private law for damages for tort resulting on the contravention of law and consequential personal injuries. A defence on the ground of sovereign immunity, the Supreme Court held is inapplicable, and client to the concept of guarantee of fun damental rights by the Constitution. Monitary compensation, it was held, is the only practical mode of redress available for the violation made by the State or its servants in the purported exercise of their powers. Thus, in Nilabati Behera v. State of Orissa, AIR 1993 SC 1960 : 1993 JIC 587 (SC), the Supreme Court awarded damages to the mother on the death of her son, aged about 22 years in police custody. The compensation awarded and to be paid by the State of Orissa was Rs. 1,50,000 and costs amounting to Rs. 1,000 to the Supreme Court Legal Committee. 80. The matter of Union Carbide Corporation v. Union of India, AIR 1992 SC 248 , was a class action for a class of people. The compensation awarded and to be paid by the State of Orissa was Rs. 1,50,000 and costs amounting to Rs. 1,000 to the Supreme Court Legal Committee. 80. The matter of Union Carbide Corporation v. Union of India, AIR 1992 SC 248 , was a class action for a class of people. The matter initially, in so far as the t Courts are concerned, drew the world s attention when the Madhya Pradesh High Court by its order of 4th April, 1988 directed payment of interim compensation of Rs. 250 crores. The other issue which came out of this case was the matter of repatriation. But this was the case in a matter arising out of negligence when damages were awarded for a class injury. While certain matters were pending as litigation in the courts at Bhopal, the Union Carbide Corporation, registered in the United States offered a compensation of $. 350 million for settlement of the claims of the victims of the tragedies. When the dispute arising out of interim compensa tion ordered by the District Court of Bhopal came before the Madhya Pradesh High Court, efforts for settlement were continued. At the High Court, the interim compensation was reduced from $. 350 million to a sum of $. 250 million. There after, both Union Carbide Corporation and the Union of India challenged the decision of the High Court by filing Special Leave Petitions. This Court views cases of Union Carbide Corporation v. Union of India (supra) as matters concerning the acceptability of the deposit of a compensation for a class of persons on injuries received and lives lost as a result of negligence. The issue whether the compensa tion ought to have been reduced or not, or whether how much of the assets, the Union Carbide Corporation could repatriate to the country where its head office is situate, are not relevant for this case. But, on record, it is clear that the Union Carbide Corporation did not resist the principle that on the tragedies which had occurred for Which it was either remotely or vicariously responsible, it was liable to pay the compensation and it came forward to accept the principle on which claims which were made against it. The claim itself, in principle, was not resisted. 81. The claim itself, in principle, was not resisted. 81. In a case which was recently decided by the Supreme Court, Avtar Singh Baggha v. State of U. P. , AIR 1995 SC 117 , a very salutary principle was decided. The compensation awarded was very small, but the issue which was noticed is of paramount importance. For illegal detention and threat to each of the persons il legally detained and humiliated for no fault of theirs, the Supreme Court awarded a sum of Rs. 10,000 and Rs. 5,000 respectively. In the context of the case before us, this case may have a salutary principle to be taken note of. As said above, it was not the amount which was relevant, but the fact that the people were granted com pensation for having suffered injury, whether physical or mental, for no fault of theirs. For violating the constitutional guarantee, as given in Articles 21 and 22, which confers a right on a person arrested to have someone informed of his arrest and the right to consult privately with his lawyer and the obligation of the police to ensure that there is an effective enforcement of this constitutional guarantee, the Supreme Court came down heavily on the State of Uttar Pradesh. 82. In the matter of Joginder Kumar v. State of U. P. , AIR 1994 SC 1340 : 1994 JIC 760 (SC) ; State of Madhya Pradesh v. Shobha Ram, AIR 1966 SC 1910 and in re: Madhu Limaye, AIR 1969 SC 1014 , the Supreme Court observed that the exist ence of the power to arrest is one thing, but the justification for the exercise of it is quite different. A police officer must be able to justify the arrest apart from his power to do so. And if a person is arrested, then the rights of life and liberty are inherent in Articles 21 and 22 (1) of the Constitution and require to be recognised and scrupulously adhered to. For the effective enforcement of these fundamental rights, the Supreme Court issued three directions with a further direction to be taken note of by all the Magistrates of the Nation and the Director General of Police of the States in India. 83. For the effective enforcement of these fundamental rights, the Supreme Court issued three directions with a further direction to be taken note of by all the Magistrates of the Nation and the Director General of Police of the States in India. 83. In the matter of Rudul Sah v. State of Bihar, AIR 1983 SC 1086 , the petitioner was acquitted by the Court of Sessions in 1968, but continued to be in custody until 1982 for 14 years after he had been acquitted. The Supreme Court came down heavily on the State of Bihar and finding that there was no response from that State, it observed "that Bizarre episode has taught no lesson and has failed to evoke any response in the Augean Stables". A compensation of Rs. 35,000 was awarded against the Government of Bihar. In this case, the Supreme Court touched the aspect of justifying the relevancy of award of compensation as an ad interim measure, apart from whatever claim may lie, as damages in private law. The observations of the Supreme Court on why compensation must necessarily be awarded for violations of constitutional rights needs to be taken note of. It reads : "this order wilt not preclude the petitioner from bring a suit to recover ap propriate damages from the State and its erring officials. The order of compensation passed by us is, as we said above, in the nature of a palliative. We cannot leave the petitioner penniless until the end of his suit, the many appeals and the execution proceedings. A full-dressed debate on the nice points of fact and law which takes place leisurely in compensation suits will have to await the filing of such a suit by the poor Rudul Sah. The Leviathan will have liberty to raise those points in that suit. Until then, we hope, there will be no more Rudul Shah in Bihar or elsewhere. " 84. In the case of Saheli v. Commissioner of Police, Delhi, AIR 1990 SC 513 : 1990 JIC 256 (SC), a nine year old child died having been beaten and assaulted by a police officer. The matter was taken to the Supreme Court by the organisation known as Saheli. " 84. In the case of Saheli v. Commissioner of Police, Delhi, AIR 1990 SC 513 : 1990 JIC 256 (SC), a nine year old child died having been beaten and assaulted by a police officer. The matter was taken to the Supreme Court by the organisation known as Saheli. In its extraordinary jurisdiction on the principle for the protection of constitutional rights, the Supreme Court held that an action for damages lies for bodily harm, which includes, battery, assault, false imprisonment, physical injury, and death. Relying on its earlier decision in the State of Rajasthan v. Mst. Vidhyawati, AIR 1962 SC 933 , the Supreme Court distinguished the immunity of the Crown for being responsible for tortious liability as being based on old feudalistic pattern of justice and reiterated that in India there should be no difficulty in hold ing that the State must be held liable for tort in respect of a tortious act committed by its servants within the scope of his employment and functioning as such any other employer. Taking an overall view of the situation on a conspectus of decision, the Supreme Court awarded the mother of the child a sum of Rs. 75,000 against the Delhi Administration. 85. The Courts attention was drawn to two aspects of the matter on the scope and the extent of the High Courts satisfaction on considering reliefs which have been brought by the petitioners in these petitions. Referring to the case of Sebas tian M. Hongray v. Union of India, AIR 1984 SC 571 , in which violation of constitu tional rights, was alleged in a habeas corpus petition, it was submitted that there is an obligation on behalf of the State to file a return to the petition. Even, if the facts are controverted by the State as a respondent, the Court would yet proceed to investigate the facts to determine whether there is a substance in the petition for a writ of habeas corpus. If the respondents decline to answer the petition, it was con tended that the High Court may proceed within its discretion for the simple reason that the State is not discharging its obligation to file a return to the writ petition. But, even upon the return being filed, the relevant aspect is whether the petitioners contention has substance ; emphasis was laid on this aspect. But, even upon the return being filed, the relevant aspect is whether the petitioners contention has substance ; emphasis was laid on this aspect. Prima facie, it was contended, that there is much material on record even after the inquiry of the C. B. I. , for whatever it is worth, that the contention of the petitioners or the injuries inflicted upon the peoples of Kumaon and Garhwal during the agitations last year, is not without substance. 86. For the torture and the agony and the mental oppression which the two widows of the missing persons had to go through and a satisfactory return was not filed by the Union of India, the Supreme Court in the same matter of Sebastian M. Hongray v. Union of India, AIR 1984 SC 1026 , passed the second o. der to pay Rs. 1 Lakh each to the two widows as the writ of habeas corpus had not been satisfied on the return which was filed by the Union of India which was not to the satisfaction of the Court. 87. The petitioners drew the attention of the Court to the observations of the Supreme Court that where the facts were within exclusive and special knowledge of the State Government, it was expected that the State Government would take im mediate steps, when constitutional rights are violated, against the erring officials. They drew the attention of the Court to the observations made by the Supreme Court in the Delhi Judicial Service Association v. State of Gujarat, AIR 1991 SC 2176 : 1992 JIC 72 (SC), and the present case to reiterate the concern of the Supreme Court that the State Government at least cannot pretend not to have knowledge, by neither arresting nor placing under suspension all the officials of the State Government who were responsible, in the present case, for the carnage which took place in various regions of Kumaon and Garhwal and at Muzaffarnagar. 88. This Court cannot ignore the observations of the Supreme Court that "apathy of the State Government in taking effective action against the erring Police Officers leads to an impression that in the State of Gujarat, Police appears to have upperhand, as the administration was hesitant in taking action against the erring Police Officers. If this practice and tendency is allowed to grow it would result in serious erosion of the Rule of Law in the State. If this practice and tendency is allowed to grow it would result in serious erosion of the Rule of Law in the State. We hope and trust that the State Government will take effective measures to avoid reoccurrence of any such in stance. . . . . . . " 89. In the matter of Bhim Singh v. State ofjammu and Kashmir, AIR 1986 SC 494 , for not producing an arrested person before the Magistrate within the requisi te period after obtaining remand, the Supreme Court held that the victim can be compensated by awarding suitable monetary compensation. In this case, the Supreme Court awarded a Sum of Rs. 50,000 to the petitioner Bhim Singh against the State of Jammu and Kashmir. 90. Recently, the Supreme Court reflected about the theme of crime and tort, an aspect where there is no security affecting true freedom and damages to persons affected as victims of State actions devoid of sovereign immunity. In the matter of P. Rathinam v. Union of India, AIR 1994 SC 1844 : 1994 JIC 642 (SC), the Supreme Court observed that the distinction between crime and tort need to be narrated as tort harms an individual and, on the other hand, crime harms society and that the harm to an individual is ultimately harm to a society. On this aspect the Supreme Court was of the view that the protection of the society is the basic reason in treating some acts as crime, as insecurity negates freedom. 91. On the confiscatory powers of the State, on aspects of search and seizure, the Supreme Court reflected on the defence of sovereign immunity explaining that barring matters of decisions on political and policy matters and of defence, of making peace or war, foreign affairs, power to acquire and retain territory were functions which were indicative of sovereignty and political in nature. These were not amenable to the jurisdiction of ordinary Civil Courts. But the Supreme Court held that there the immunity ended and that no civilised system could permit an executive to play with the people of this country and claim that it is entitled to act in any manner as it is sovereign as the concept of public interest has changed with the structural change in society. But the Supreme Court held that there the immunity ended and that no civilised system could permit an executive to play with the people of this country and claim that it is entitled to act in any manner as it is sovereign as the concept of public interest has changed with the structural change in society. The Supreme court observed that - "no legal or political system today can place the State above law as it is unjust and unfair for a citizen to be deprived of his property illegally by negligent act of officers of the State without any remedy. From sincerity, efficiency and dignity of State as a juristic person, propounded in Nineteenth Century as sound sociological basis for State immunity the circle has gone round and the emphasis now is more on liberty, equality and the rule of law. The modern social thinking of progressive societies and the judicial approach is to do away with archaic State protection and place the State or the Government at par with any other juristic legal entity. Any watertight comparmentalisation of the functions of the State as "sovereign and non-sovereign" or "governmental and non-governmental" is not sound. It is contrary to modern jurisprudential thinking. The need of the State to have extraordinary powers cannot be doubted. But with the conceptual change of statutory power being statutory duty for sake of society and the people the claim of a common man or ordinary citizen cannot be thrown out merely because it was done by an officer of the State even though it was against law and negligently. Needs of the State, duty of its officials and right of the citizens are required to be reconciled so that the rule of. law in a wel fare State is not shaken. " 92. In re : N. Nagendra Rao & Co. v. State of A. P. AIR 1994 SC 2663 , holding that the doctrine of sovereign immunity has become outdate as sovereignity now vests in the people, the State cannot claim any immunity if an action is main tainable against the officer personally then there is no reason to hold that it would not be maintainable against the State. 93. v. State of A. P. AIR 1994 SC 2663 , holding that the doctrine of sovereign immunity has become outdate as sovereignity now vests in the people, the State cannot claim any immunity if an action is main tainable against the officer personally then there is no reason to hold that it would not be maintainable against the State. 93. It may be noted here that the Supreme Court in effect, was on the same theme of reflecting on archaic procedure and defences on behalf of the State on what may be termed as actions amenable for claim of damage against the State when the State or its agents breach public law. The redressal part of it, insofar as the citizen was concerned, was already the subject-matter of a very serious discus sion in the report known as Donoughmore Committee Report, known as the Com mittee on Ministers Powers. 94. Insofar as damages was concerned, though the Supreme Court was seized of a matter under the Consumer Protection Act, 1986, yet, for the generality of it, it reflected very seriously on a remedy of a citizen to. seek relief for injury under public law caused by the agency of the State. The Supreme. Court held that the reliefs which could be granted by a Court, are not limited to award of Value of goods of service but this could be extended as compensation for harassment, mental agony or the oppression suffered by a person who as. of right is entitled to enjoy the service. [lucknow Development Authority v, M. K. Gupta AIR 1994 SC 787 : 1995 (2) JCR 30]. 95. Surely, insofar as service is concerned, unquestionable it cannot be valued basic human rights, right to life and liberty which are far above consumer services. But the principles for award of compensation under the public law can be no dif ferent. 96. With so much as has happened and the myriads of reliefs which have been sought and claimed by the various petitioners is several petitions, the question is which relief to grant or refuse or to formulate in the circumstances of these cases. In all these cases before the Court, there are no individuals who seek private reliefs against personal injury. With so much as has happened and the myriads of reliefs which have been sought and claimed by the various petitioners is several petitions, the question is which relief to grant or refuse or to formulate in the circumstances of these cases. In all these cases before the Court, there are no individuals who seek private reliefs against personal injury. If this had been the case, then it would have been very easy for the High Court, on the decisions of the Supreme Court, for the violation of fundamental rights, to grant individual reliefs for personal injuries suffered to all those who have been victims of human rights violations. 97. The issue before the Court is not a strict proof liability situation, nor is there any issue before the Court to find the aggressor and the person who may have been aggressed upon. Such a situation may be rederessed by two ways : (a) by a personal tortious action taken to a court for being awarded compensation for in juries on a strict proof liability ; and (b) criminal action for injuries suffered by the victim for breach of the law. Age old staid and traditional remedies for wrong suf fered by personal injuries were broadly classified under the two groups referred to. In fact, after the Second World War or it would be safer to suggest that v the last quarter of a century new dimensions have been added throughout the civilised world to place deterence against debasing basic rights and redress for violation of these basic rights without having to go through the procedure of a strict proof liability. 98. The reason this Court is going into this aspect of the matter is that rarely have the courts of the nation faced a challenge of a class action arising out of injuries to a specific group inflicted as a consequence of action by or on behalf of State agencies. 99. 98. The reason this Court is going into this aspect of the matter is that rarely have the courts of the nation faced a challenge of a class action arising out of injuries to a specific group inflicted as a consequence of action by or on behalf of State agencies. 99. If this Court were faced with a solitary situation of death by police firing on civil right agitators, injuries, or rape and molestation of a woman or a girl by personnel of the State agency or as a consequence of State in discretion, the Court would have without any hesitation sought guidance from the cases decided by the Supreme Court to award compensation and even gone to the extent to update the compensation in the context of present times in terms of inflation. But the Court is not dealing with an individual case and the decisions of the Supreme Court, as have been placed at the Bar, do not meet situations of class injuries, with those injured not before the Court. The issue is not of negligence in State action or the ir regularity or the illegality of it, for these may be actions, for which redress may be sought in private law. Illegality alone, in public law also may not invite exemplary damages, under a prerogative writ by the High Court. Throughout the hearing of the case, the State of Uttar Pradesh took a silent posture. Initially, with a defence that the causes brought into Court were frivolous and without substance, but sub sequently, as prima facie material was unfolding itself to show the reality of the situation to watch quitely, submitting nothing. In so far as the record is concerned, the State of Uttar Pradesh and its constituent agencies do not readily accept either (a) the tragedies or (b) the mitigating remedies. Also, not to be found on record on the pleadings as a defence by the State of of its agencies, but an information ex tracted by the Court, it has come on record now that the State Government claims to have granted compensation to the victims of injuries, of death and rape. Also, not to be found on record on the pleadings as a defence by the State of of its agencies, but an information ex tracted by the Court, it has come on record now that the State Government claims to have granted compensation to the victims of injuries, of death and rape. This situation itself calls for comment from the High Court that the State did not faith fully disclose to the High Court all the information it had in meeting the cir cumstances of the tragedies which occurred when agitators agitating against the policies of the State Government were met with resistence from the State ad ministration. The fact that the State doled out compensation while these matters were pending in Court is an aspect which will be dealt with by this Court later. 100. It is not that such a situation has not happened in courts of other nations. But this aspect of awarding damages or compensation is an aspect of law which has developed in the contest of the State action being ultra vires of constitutional guarantees. Ordinarily, for a tortious action, citizens were relegated to appropriate courts for quantification of damages and the assessment depending upon the nature of injuries suffered and that also dependent upon, if it was against State action, protection to its agencies on the theory of sovereign immunity or the damages vary ing with the vagaries of vicarious liability. This reminds the Court of a book pub lished in 1930, in the great depression. This book evaluates the intrinsic worth of a human being. The title of the book is : The Money Value of a Man. This book was supposed to be for use by life insurance agents for whom it was basically written, and also for lawyers, judges and legislators who were constantly faced with the cir cumstances of locating the appropriate amount of damages to be given for loss of life or the vanished earning power of the deseased. The question before the Court is not what a man is worth, but what is the worth of a mans life. If the court were to answer the first question, it will get bogged in determining, on the basis of a society riddled with inequalities, the commercial measure of a mans life. The question before the Court is not what a man is worth, but what is the worth of a mans life. If the court were to answer the first question, it will get bogged in determining, on the basis of a society riddled with inequalities, the commercial measure of a mans life. The basic question is whether the value of life has a different meaning in the loss of a rich mans son and a poor mans son. 101. In the United States the Courts were first faced with the question of what ought to be the measure of damages, where there has been a violation of the due process and a State action rests on ignoring constitutional rights. 102. In 1971, the United States Supreme Court had before it the matter of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U. S. 388 (1971 ). It was in this case that the United States Supreme Court held that a cause of action for damages against federal law enforcement officers who violate the constitutional guarantees could be inferred directly through constitutional provisions. There was a void in judicial precedence in the United States and the question was finally answered in the affirmative in the Bivens case, when 25 years earlier in the matter of Bell v. Hood, 327 U. S. 678 (1946), it had been left un answered. Things began to move now as far as judicial decision making was concerned, that compensation against tortious liability for violating constitutional guarantees may be considered by the Court direct instead of taking the circuituous route of litigation on a strict proof basis for award of damages in a tortious action. After the Bivens case, the United States Supreme Court dealt with almost similar issue in the case of Carey v. Piphus, 435 U. S. 247 (1978 ). This case also dealt with damage awards. A change was taking place in the jurisdictional approach to considering compensation, but by dissecting it in two clear compartments for the award. The first part was award of damages for proven tortious acts. The develop-merit of law which was taking place was seeing the birth of a new jurisprudence which may be termed as constitutional torts. In a matter of considering damages for constitutional torts an awareness was coming in society for the strict preservation of constitutional rights and consequential remedies. The first part was award of damages for proven tortious acts. The develop-merit of law which was taking place was seeing the birth of a new jurisprudence which may be termed as constitutional torts. In a matter of considering damages for constitutional torts an awareness was coming in society for the strict preservation of constitutional rights and consequential remedies. Thus, the courts were called upon to answer and consequentially grant damages without proof and actual injury, but only to examine whether constitutional guarantees had been injured. The aspect to be taken note of was not to find out on who by proof caused the injury and the extent it has caused but only the aspect of the injury being caused by violat ing the due process and constitutional rights. In the united States the principle came to be recognised in the matter of Carvey v. Piphus (supra) and this opened the door for federal courts to consider actions brought to court with either of two reliefs (a) to declare an action of a State agency as ultra vires and violating the constitutional guarantees of United States and (b) consequent upon such viola tions, award compensation. Thus, in the United States the award of compensation for violation of constitutional guarantees came to be recognised. 103. In England a radical change was being considered in the matter relating to judicial remedies in the area of public law. The thinking had already started 65 years ago when in October 1929, the Lord High Chancellor of Great Bretain after consultation with the Prime Minister and the Chancellor of the Exchequer (Acting Prime Minister) appointed a Committee precisely known as the Committee on Ministers Powers. The Chairman of the Committee was the Right Hon. Earl of Donoughmore, K. P. This Committee is popularly known as the Donoughmore Committee. Lord Donoughmore resigned and he was replaced on 2nd May, 1931 by the Right Hon. Sir Leslie Scott, K. C. 104. This report is supposed to be a dissertation on administrative law. As the title of the Committee itself suggests, it was constituted to examine the ideal condi tions in which delegated legislation ought to function. The Committee dealt with the aspect of judicial control for delegated legislation and the simplification of legal procedure. This report is supposed to be a dissertation on administrative law. As the title of the Committee itself suggests, it was constituted to examine the ideal condi tions in which delegated legislation ought to function. The Committee dealt with the aspect of judicial control for delegated legislation and the simplification of legal procedure. In this regard the report of the Committee observed : Judicial control over delegated legislation : (d) We reported in paragraph 8 at page 41 our objection to the use in Acts of Parliament of clauses purporting to enact that the mere making of a regulation by a Minister under the Act should be "conclusive evidence" that in doing so he had not exceeded his statutory power. We are of opinion that in delegating legislative func tions to a Minister, Parliament should be careful to preserve in all but the very ex ceptional cases, which we describe below, the jurisdiction of the Courts of Law to decide whether in any purported exercise of those functions the Minister has acted within the limits of his delegated power. The rule of law requires that all regulations should be open to challenge in the Courts except when Parliament deliberately comes to the conclusion that it is essential in the public interest to create an exception and to confer on a Minister the power of legislating with immunity from challenge. We recognise that such exceptions must be created in cases where finality is desirable, e. g. , where power is given to a minister to make law upon the faith of which titles to property may be created or money may be raised, e. g. , Stock Regulations, or upon which marriages may be solemnized, e. g. , Regulations under the Foreign Mar riage Act, 1892, but we are of opinion that when for such reasons the regulation cannot remain indefinitely open to challenge, there should be an initial period of challenge of at least three months and preferably six months. Apart from emergency legislation, we hardly think there can be any case so exceptional in its nature, as to make it both politic and just to prohibit the possibility of challenge altogether. Apart from emergency legislation, we hardly think there can be any case so exceptional in its nature, as to make it both politic and just to prohibit the possibility of challenge altogether. Simplification of legal procedure : We would direct attention to the fact that procedure by way of certiorari, prohibition and mandamus is archaic and in some ways cumbrous and inelastic, and we would suggest the expediency of introducing a simpler, cheaper and more expeditious procedure. We revert to this topic in Section III of our Report, paragraph 12. " 105. The Committee under Section 3 of the report dealt with the subject head: the Supremacy or Rule of Law - Its Histories and Meaning. It considered the con text and the meaning of what the concept of Rule of Law means. The relevant passages in reference to the principles which give exposition on this subject, the Committee observed. "what the Rule of Law now means : The best exposition of the modern doctrine and of its corollaries is that con tained in Diceys Law of the Constitution. He says : "that, rule of law. . . . . . . . which forms a fundamental principle of the Constitution, has three meanings, or may be regarded from three different points of view. It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the Government. . . . . . . . . It means again, equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts. . . . . . . The rule of law, lastly, may be used as a formula for expressing the fact that with us the law of the Constitution, the rules which in foreign countries naturally form part of a constitutional Code, are not the source but the consequence of the rights of individuals as defined and enforced by the Courts. . . . . . The rule of law, lastly, may be used as a formula for expressing the fact that with us the law of the Constitution, the rules which in foreign countries naturally form part of a constitutional Code, are not the source but the consequence of the rights of individuals as defined and enforced by the Courts. " Necessity of maintaining the rule of law : It is primarily from the first two of these points of view that we approach the problem propounded by our terms of reference; but indirectly Diceys third point of view has a practical importance at least equal to that of the other two. In this look he has demonstrated how the unwritten Constitution of England consists of a set of legal principles gradually evolved out of the decisions of our courts of Justice in in dividual cases. Upon the maintenance of the principles evolved by that process the liberty of the subject and the protection of his rights depend. Any encroachment on the jurisdiction of the Courts, and any restriction on the subjects unimpeded access to them, are bound to jeopardise this rights to a much greater degree than would be the case in a country like the United States where they are protected by the express terms of a written constitution; for by any such encroachment the principal safeguard provided by the constitution for the maintenance of the subjects rights is impaired. The same process which built up the constitution may also undermine it. " 106. In 1969, in Great Bretain, the Law Commission recommended that an inquiry should be undertaken into administrative law and to be carried out by a Royal Commission or Committee of comparable status. One of the terms of the reference which were recommended for inquiry was how far are changes desirable with regard to the form and procedure of existing judicial remedies for the control of administrative acts and omissions? In 1971, the Commission published a working paper on Remedies in Administrative Law in the light of responses received by the Commission. The published report was known as Report on Remedies in Ad ministrative Law. This report was given in 1976. The report examined the proce dure for judicial control exercised through prerogative writs and made recommendations by including a draft procedure for a judicial review bill. The published report was known as Report on Remedies in Ad ministrative Law. This report was given in 1976. The report examined the proce dure for judicial control exercised through prerogative writs and made recommendations by including a draft procedure for a judicial review bill. Previously, a claim to damages could not be joined in an application for a prerogative writ. 107. But, the Law Commission thought there might be cases where the Court, having decided on an application for judicial review that an illegality had occurred, might be able to make an award of damages. The Commission was clear that the new procedure they recommended, the application for judicial review was not to be exclusive in the sense that it would become the only way by which issues relating to the legality of the actions of public authorities could come before Courts. The concept of the application for judicial review suggested by the Law Commission was accepted. The Commission was also of the view that leave should be needed to apply for judicial review. In the United Kingdom, the Supreme Court Act, 1981, accepting the Law Commissions recommendations by Section 31 (3) provides : "no application for judicial review shall be made unless the leave of the High Court has been obtained, in accordance with rules of court. . . . . . . . " On the grant of damages Section 31 (4) of the Supreme Court Act, 1981, provides : "on an application for judicial review the High Court may award damages to the appellant if - (a) he has joined with his application a claim for damages arising from any matter to which the application relates; and (b) the court is satisfied that, if the claim had been made in an action begun by the applicant at the time of making his application he would have been awarded damages. " Administrative law, Fifth Edition, by David Foulkes, pages 270-71. 108. Thus, one finds that while in the United States of America, for breaches of public law and violating constitutional guarantees, the law was changing at the hands of the United States Supreme Court, in England, a half century of delibera tion by expert committees gave recommendations to the Government for bringing about changes so that violation of public law could also become the subject- matter of challenge before the Courts and consequential grant of damages. The development in the net result was the same except in the manner in which it was tackled in the United States and Great Britain was different. In one country, it was partaking the nature of judicial interpretation and in another nation experts conscious of public rights and the obligations of the State recommended that the law itself must change to the responsible need of a society and co-relating rights and administration between the citizens and the State so that breaches by either, of public obligations could be examined in judicial review by the courts. 109. Law is in a process of continuous change and development. Tortious ac tion arising out of breach of public law and arising out of consequential violation of constitutional guarantees became the subject- matter of such serious academic debate. The utilisation of prerogative writs by the Court, or for that matter, citizens having access to it, was seeing a revolutionary change during the 20th Century cor responding with the increasing State control on public matters. Tortious liability was considered to be a private action. Tortious liability as a claim against the State for breach of public law with emphasis on violation of constitutional guarantees too saw development and changes in the attitudes of Courts : (1) The veil of sovereign immunity was peirced and (2) damages for violating constitutional guarantees came to stay as an award for a new phenomena known as constitutional torts. 110. An Article appeared in the Harvard Law Review in 1971. It was titled as "of Rights and Remedies: The Constitution As A Sword", 85 (1971-72) Harvard Law Review 1532. Some reflections in the article are relevant: "the granting of money damages against the Government, in the absence of legislative authorization, actively involves the judiciary in policy decisions relating to the allocation of limited resources and, in certain instances, will raise serious ques tions concerning the enforceability of a courts mandate. And the specter of damage actions against individual officers may have a chilling effect on the good faith execu tion of governmental policy. Set against the caution dictated by considerations like thee is the principle that every right should find vindication in an effective remedy. As Chief Justice marshall expressed it: "the Government of the United States has been emphatically termed a Government of laws, and not of men. Set against the caution dictated by considerations like thee is the principle that every right should find vindication in an effective remedy. As Chief Justice marshall expressed it: "the Government of the United States has been emphatically termed a Government of laws, and not of men. It will certainly cease to deserve this high ap pellation if the laws furnish to remedy for the violation of a vested legal right. " Once substantive legal norms have been declared to be in the Constitution, there is much to be said for a judicial prerogative to fashion remedies that give flesh to the word and fulfilment to the promise those norms embody. * * * * B. The power to infer remedies directly from the Constitution Once the existence of a federal substantive right is established^ it is then neces sary to determine whether the court has power to create a damage remedy absent any legislative mandate to do so. A quarter of a century later, however, he came to the conclusion thai the ad justment of remedies sought in Bivens would be "an exercise of legislative power that the Constitution does not give us. " the same conclusion was reached by Mr. Justice Blackmun - the Court was engaged in "judicious legislation" - and by the Chief Jus tice - " (1 ). legislation is the business of Congress. " None of the three, however, under took to distinguish the settled practice of granting injunctive relief premised directly upon the Constitution, or to explain why the Court has the power to develop some remedies (such as the exclusionary rule) but not others (such as damages), or to dis tinguish the judicial power to develop compensatory remedies based on federal statutes from the lack of power to do so on the basis of constitutional norms. The source of the Courts power to create remedies will be found, if at all, in the spare language of Article III: "the Judicial power shall extend to all Cases. . . . . . . arising under this Constitution. . . . . . . " A case based directly upon the fourth amendment and seeking to vindicate the substantive rights guaranteed by that provision is almost paradigmatically one "arising under the Constitution". . . . . . . arising under this Constitution. . . . . . . " A case based directly upon the fourth amendment and seeking to vindicate the substantive rights guaranteed by that provision is almost paradigmatically one "arising under the Constitution". The Courts authority to crate a particular remedy in such a case thus follows if the remedial in novation sought is within the scope of that tightly packed phrase "the Judicial Power", for it is that power which extends to all cases arising under the Constitution. Given a common law background in which courts created damage remedies as a matter of course, it is not unreasonable to presume that the judicial power would encompass such an undertaking on the part of the federal courts, unless there were some contrary indications that the judicial implementation of such a remedy was not to be a part of the article III judicial power. * * * * C. Standards for exercising the remedial power : Given the existence of judicial power to formulate compensatory remedies directly from the Constitution, there still remains the central and difficult question of articulating standards to govern the Courts discretion in exercising that power. * * * * TV. Conclusion : While the result in Bivens is unlikely to have any dramatic impact on law en forcement practices, the case could be of germinal significance as an assertion of judicial responsibility for the development of remedy implementing the Bill of Rights. The reasoning necessary to reach the Bivens result bears important implications for the respective roles of Court and Congress in exercising remedial power to effectuate substantive constitutional guarantees. It has been argued here that the Court should be free to apply the same standard in creating constitutionally based remedies as it does in effectuating federal statutes, and that Congress may modify, within limits, judicial created remedial mechanism. inferred directly from the constitutional provisions. This interaction of the institutional role suggests that the judiciary may be free to pierce the soverign immunity bar which prevents the recovery from the Government for fourth amendment violation and that the Congress may be limited in its ability to replace the exclusionary rule with compensatory remedies. In short, once it is admitted that the Constitution may be used as a sword in litigation, the issues raised, unsurprisingly, extend far beyond the specific questions litigated. " 111. In short, once it is admitted that the Constitution may be used as a sword in litigation, the issues raised, unsurprisingly, extend far beyond the specific questions litigated. " 111. Ten years later another Article appeared in the Harvard Law Review. The subject was "damage Awards for Constitutional Torts: A Reconsideration After Carey v. Piphus 93 (1979-80) Harvard Law Review 966. Certain passages in this article are very thought provoking on the subject of award of compensation for constitutional torts: "the purpose of both Section 1983 and Bivens-type remedies is not merely compensation for the consequential injuries that accompany a constitutional violation, but more fundamentally, redress for the abridgement of the constitutional right itself. The first part of this Note examines two competing models for measuring damages and discusses their status after the Carey decision. The second part analyzes the in fluence of the "background of tort liability" on the development of constitutional torts and explains the failure of the model that has evolved from this background. The final part advocates awarding damages without proof of actual injury and discusses the permissibility of adopting such a system through judicial action. " * * * * An individual who becomes the focus of lawless official action loses the as surance that the Government affords all its citizens a degre of security for their basic interests. This loss of security in ones entitlements is inherent in the deprivation of due process; the arbitrary taking is itself an element of damages separate from the value of the property taken. * * * * Certainly the nominal one dollar award granted in Carey is insufficient to com pensate for the loss of the constitutional right. Nominal damages are in no sense compensatory, but merely symbolic and even as a symbol clearly unable to convey the importance of a constitutional right. * * * * An appropriate system for measuring damages for constitutional violations re quires sensitivity to the right, that has been abridged and the need for detterence. * * * * The very existence of private remedies for victims of unconstitutional conduct reflects the importance society places on constitutional guarantees. Yet the common law model fails to provide either adequate compensation for or detterence of con stitutional violations. * * * * The very existence of private remedies for victims of unconstitutional conduct reflects the importance society places on constitutional guarantees. Yet the common law model fails to provide either adequate compensation for or detterence of con stitutional violations. The voting rights model, which may be legislatively refined by the addition of a minimum guaranteed amount to be awarded for all violations, rep resents a more appropriate alternative. By distinguishing the nature of interests protected in the Bill of Rights from those contained in common law torts analogs, federal courts cangrant awards within the letter - though possibly not the spirit - of the Corey decision. " 112. At about same time between the decades when the Law Commission in England was suggesting reform in law on the issue of prerogative writs, and damages in public law, and in the United States, its Supreme Court was concep tualising an approach of receptivity to a citizens grievance for violation of his con stitutional rights seeking damages for constitutional torts, the Supreme Court in India also was going ahead with the jurisprudence by opening the doors for a citizen who had been hurt by blatant aggression on his constitutional guarantees in total breach of the rule of law or the due process of law. The decisions of the Supreme Court have already been noticed by this Court and are not being repeated. 113. In all these developments of the law and the receptivity of the Courts to hear grievances of constitutional breaches particularly of rights which have been made fundamental and guaranteed to a citizen, the exemplers are of affecting in dividuals in breaches of constitutional wrongs. Illegal search, by Federal law agents in the United States, expulsion of students from a school without hearing being granted by the school board, matters arising out of race relations, blinding of per sons or death in police custody, all are actual incidences which have happened either in the United States, Great Britain or in India and are incidents of individual sufferings and personal complaints (may be that they were brought to the Court as a public interest litigation ). One mans death at the hands of public authorities is enough to question the credibility of a Government in the other common law na tions of the world. One mans death at the hands of public authorities is enough to question the credibility of a Government in the other common law na tions of the world. But, it appears that of late in India the incident passes as some thing like a natural calamity. 114. This Court is not discussing the money value of a man. The function of a Court is something more fundamental, when it measures the value of a human life. Put another way, what are the values which constitute a human life? 115. On mental and emotional disturbances for outraging human values, caus ing mental pain or anxiety, anguish and mental hurt, the history of judicial control over the size of verdicts on such aspects is contained in a very elaborate article - Mental and Emotional Disturbances in the Law of Torts, 49 (1935-36) Harvard Law Review 1033. This article deals with the matter relating to considering damages even for illicit intercourse and mishandling corpses. Payment of compensation to victims is not in issue : 116. Let there be no misunderstanding that there is a misunderstanding that the payment of compensation is in issue. This is not so. Unknown to the Court, but brought to the notice during hearing a fact was not denied that the Chief Minister had reached the compensation to the victims. When the Court sought confirmation on this aspect from the State counsel, it was stated that it was correct that the Chief Minister had directed that compensation be paid to the victims. When the Court sought the record, an official document was placed before the Court showing that of those who were the victims of injures or death, compensation had been directed to be paid and the names of the recipients were mentioned on the record produced before the Court. The Court required this information to be brought on record by an affidavit. The State of U. P. filed an affidavit of Secretary in the Department of Home giving details of the compensation which has been distributed to some of the injured and the next of kin as "financial assistance". This affidavit is dated 17 April, 1995, in Writ Petition No. 39919 of 1994. The pattern of compensation is graded in a descending order. To the nearest kith-and-kin of the deceased, Rs. 1,00,000 has been awarded and for injuries Rs. 5,000 and Rs. 20,000. This affidavit is dated 17 April, 1995, in Writ Petition No. 39919 of 1994. The pattern of compensation is graded in a descending order. To the nearest kith-and-kin of the deceased, Rs. 1,00,000 has been awarded and for injuries Rs. 5,000 and Rs. 20,000. The actual receipt of pay ment was made an issue by the counsel for the petitioners on several pleas. Some submitted that the payment of compensation as is claimed to have been arranged to be delivered by the Chief Minister is a gimmick. Others contended that it could not be verified and all submitted in union that poverty of the hills is being purchased. The contention of the counsel for the petitioners was that in the abject poverty of the people of the hills to send a bait of compensation and then put a temptation that it should not be received by any victim, or if dead, by his kith-and-kin, unless their voice is shut for all times to come, is a sad reflection of first violating human rights and then purchasing the integrity of the affected people. 117. It is on this theme that amongst one set of petitioners an application was moved that the people of Uttarakhand are not a purchasable commodity and that they do not want any compensation from a State which terrorizes its people into submission by a firing squad and mass rape. A formal prayer was made that the Court may not consider the aspect of compensation notwithstanding that the reliefs were sought and were actively argued for. 118. The actual victims, whether by sufferance of injury and, if dead, repre sented through their kith- and-kin, are not before the Court, This is not a matter which could be decided on the demogogy of politics or the emotion of empassioned lawyers from the hills. Retrospectively, the entire theme under examination, insofar as the Court is concerned, is also taking into consideration the deterrent element. 119. Eliminating the emotion part of it and excluding the politics, whether the compensation has reached the victim or not, the fact of the matter is that it is admitted by a Government order that the Chief Minister announced the payment of it. The formality of reaching the payment is a matter of State record. But is this to be the end of matters before the Court? The formality of reaching the payment is a matter of State record. But is this to be the end of matters before the Court? So it was suggested on behalf of the State of U. P, If that were so, then not only the victims, the people of the regions wherever the carnage took place, but even the High Court has been attempted to be humbled to part with the cases. The High Court does not have to come in con flict on the principle that the compensation has to be awarded. This aspect has already been answered by the Slate of U. P. in attempting to reach compensation to the victims. This in itself is an acknowledgement that there was a tragedy and there were victims. Then why were issues so raised before the Supreme Court and the High court not even to accept the fact of the existence of this tragedy? If the pay ment of compensation to the victims is accepted, then the violation of constitution al guarantees ceases to be an issue. The only object of the Court in ordering an enquiry into the affairs of tragedy which took place last year, a few weeks before the first week of October, was only an exercise to find out objectively why mass scale violence had taken place widespread in the hills. 120. If the State of U. P. has itself accepted the principle of awarding compen sation to the injured and on behalf of the dead to their kith-and-kin, then there is no issue before the Court that damages cannot be awarded. Case after case decided by the Supreme Court, cited as the bar, reveals that the award of compensation for violation of fundamental rights in such situations is the logical consequence and what has been awarded by the State is a pittance. The issue, then, is how much? Who will judge the situation and will quantify the amount? It is not unknown that in the award of damages and compensation there has been much academic criticism that at times both the Judge and the jury have made a mistake in awarding whatever they may have. 121. In the case before the Court, the situation is unparalleled. Who will judge the situation and will quantify the amount? It is not unknown that in the award of damages and compensation there has been much academic criticism that at times both the Judge and the jury have made a mistake in awarding whatever they may have. 121. In the case before the Court, the situation is unparalleled. If the petitioners or the victims or the people of the hills are smarting and feel that their respect and ethos has been injured or their community feelings, then no amount of award of compensation will ever mitigate the situation. If the community has been insulted by the measures taken against it as a whole, then who should receive the compensation ? Individuals? These are the matters which engage the, Courts atten tion. Of matters which engage the attention of the Court are matters which have not engaged the attention of any Court in peace time, but probably only in war or as a result of a treaty between nations. There is the glaring case of extermination of the Jewish race by the Third Reich. Of every Jew who was exterminated, was com pensation sent to the parents of the victims, to the sons and daughters of the mothers and fathers exterminated or to the parents of the sons and daughters exter minated? 122. This year during the commemoration of 50th year of end of World War II, Japan officially recognised its war crimes. In an announcement, their Emperor of fered universal regret in accepting that the crimes against humanity at the hands of the Imperial Army of Japan had been committed. Half a century later, war crimes had been accepted officially and regret had been offered publicly. Japan even has gone to the extent of contemplating compensation. The debate today is to whom? 123. War brings unusual situations and tragedies. Loss of life is one of them. The pathetic break up of home life is another. The following note which appeared in the Law Quarterly Review, two years after the Second World War, is pertinent: "in W. v. Minister of Pensions, (1946) 2 All ER 501, Denning, J. , had to decide whether the appellants chronic anxiety state, due to worry about his wife who had miscon ducted herself with several men during his absence in the army, could be said to have been caused by his war service. The learned Judge held that the war service produced the separation which gave rise to circumstances in which the cause operated, but the real cause was the wifes conduct. the separation was attributable to war service, but it only provided the conditions in which the cause operated. In other words there is a distinction between creating an opportunity and causing the result. It is not at all certain that metaphysicians would accept this view of causation, but as the learned Judge pointed out, cause in law must be treated according to commonsense standards, A distinguished lawyer once ex pressed this succinctly when he said: "as a line cannot be drawn anywhere, a line must be drawn somewhere" [the Law Quarterly Review (Vol. 63 Jan. 1947) Notes, page 14]" Where to draw the line? 124. Then, the last two decades in most of the nations where the Common Law is applicable, the award of compensation or damages has not rested on 19th Century concept. Even valid detention has come under consideration as a human rights problem. When an ordinary member of the family is put behind the bars, given the circumstances of a family, its economic existence is in peril. To mitigate a circumstance of loss of employment and the difficulties of rehabilitation after the period of detention is over, compensation during detention (1976) Crim. L. R. 422 ; (1977) Crim. L. R. 720; (1978) Crim. L. R. 22, has been considered. 125. For violation of civil rights, committing constitutional torts and abusing human rights, in the United States, a federal enactment removed prophylactic guards on suits against the Government, and its officials. The enactment is known as the-Federal Tort Claims Act, by reference, 60 Stat 842 (1946 ). By the enactment of the Federal Tort Claims Act in 1946, Government liability, particularly, on in juries caused to citizens by malacious actions was made easier for considering court claims. The following passage in the review of a book on suing the Government is relevant: "the Federal Tort Claims Act, enacted in 1946, relinquished an important part of the Sovereign Immunity of the United States and was part of a larger twentieth-century trend toward relaxing absolute barriers to suits against Governments and officials. The following passage in the review of a book on suing the Government is relevant: "the Federal Tort Claims Act, enacted in 1946, relinquished an important part of the Sovereign Immunity of the United States and was part of a larger twentieth-century trend toward relaxing absolute barriers to suits against Governments and officials. By this act, the United States consented to be sued for its agents torts when private persons would be liable for such torts under the law of the place where the tort occurred. Bu. t the act fell short of imposing liability for all torts of United States agents. Generally, the tort must be compensable under State law. In addition, the act excluded liability for a vague category of behaviour known as "discretionary functions. " As originally enacted, the act also excluded liability for many tons that might arise in the context of law enforcement, including assault, battery, false imprisonment, and false arrest. In 1974, however, the International Tort Amendment Act expanded Government liability to include these and other torts. The act continues to exclude liability for defamation, misrepresentation, deceit, and interference with contract rights. [review by Theodore Eisenberg Book by Shuck Peter H. 1983 Suing the Government; Citizen Remedies for Official Wrongs. New Haven, Conn: Yale Univer sity Press]" 126. American case law abounds in throwing light on interference by Court for the award of punitive damages for an action brought by citizens for deprivation of civil rights, constitutional torts and human rights. In several cases, courts in America have upheld claims for the grant of punitive damages on the ground that the fact that defendants actions were objectively unconstitutional is not considered when determining whether to award punitive damages in civil rights action as award of punitive damages only requires assessment of defendants subjective state of mind. [jolivet v. Deland, C. A 10 (Utah), 1992, 966 F. 2d 573 (Reference United States Code Annonated (USCA) Cahpter 21)]. In order to recover punitive damages in actions, complaining deprivation of civil rights, plaintiff need only show that he, in fact, suffered such damages and that defendants action proximately caused his injury. [board of Trustees of Weston Country School Dist. No. 1, Weston Country v. Holso, Wyo, 1978, 584 P. 2d 1009, rehearing denied 587 P. 2d 203. (Refer ence United States Code Annotated (USCA) Chapter 21)]. [board of Trustees of Weston Country School Dist. No. 1, Weston Country v. Holso, Wyo, 1978, 584 P. 2d 1009, rehearing denied 587 P. 2d 203. (Refer ence United States Code Annotated (USCA) Chapter 21)]. Courts in America have also held that if aggravating circumstances are found punitive damages are recoverable under such law prescribing the deprivation of rights provided aggravat ing circumstances are found. Silver v. Cormier, C. A. 10 (Colo.) 1976, 529 F. 2d 161, New Born v. Morrison, D. C. III. 1977, 440 F. Supp. 623. (Reference United States Code Annotated (USCA) Chapter 21)]. Punitive damages were warranted, in action against police officers for deprivation of civil rights, where it was found that defendants did not act in good faith, [caperci v. Huntoon, C. A. 1 (Mass.) 1968, 397 F. 2d 799, certiorari denied 89 S. Ct. 299, 393 U. S. 940 21 L. Ed. 2d 276]. Punitive damages are available in cases if defendants have acted with reckless or callous disregard of or indifference to rights and safety of others. [keenan v. City of Philadelphia, C. A. 3 (Pa.) 1992, 983 F. 2d 459. (Reference United States Code An nonated (USCA) Chapter 21]. Courts in the United States have consistently taken a view that Punitive damages may be imposed if defendant has acted willfully and in gross disregard of the rights of the complaining party or where the defendants have acted in bad faith or for an improper motive, even though behaving like gentlemen, [lee v. Southern Home Sites Corp. C. A 5 (Miss.) 1970 429 E 2d 290 Note 4883 ; Pizzola to v. Perez, D. C. La. 1981, 524 F. Supp. 914 ; Lyken Vavreck D. C. Minn. 1973 366 F. Supp. 585 (Ref. United States Code Annotated (USCA) Chapter 21)] 127. And yet Courts in the United States have held that punitive damages are imposed in Civil rights actions primarily for their effect on the defendant and to vindicate public interest in deterring malacious or wanton conduct by public offi cials, and, in arriving at appropriate amount to be awarded in punitive damages, court must taken into consideration severity of constitutional violation and what is necessary to reasonably deter such conduct in the future. [aumiller v. University of Delaware, D. C. Del. 1977, 434 F. Supp. 1273. (Reference United States Code An notated (USCA) Chapter 21)]. 128. [aumiller v. University of Delaware, D. C. Del. 1977, 434 F. Supp. 1273. (Reference United States Code An notated (USCA) Chapter 21)]. 128. In India, no development worth the same has taken place to prescribe remedies to claim effective damages on complaints of torts and compensation against ultra vires acts of the State for violation of constitutional rights or a proce dure for redress of damages in public law. The Court Fees Act, 1870 acts as a deterrent preventing the Courts in India from adjudging a rightful die on torts as a consequence of a bona fide action. No man of modest means or even of average means can approach the Courts in India as the court fee is prohibitive and a dis couragement. Then, actionable claims are likely to fail at the very first instance on the issues raised by the State or the Union regarding the statutory notice before even the merits of the suit are debated. Half the time of the Courts is engaged in sorting out the niceties of the statutory notice prior to bringing a cause of action for claiming damages on tortious liability. On this, the Law Commission of India in 1984 had pointed out the serious defects and the havoc which the present structure of the law renders of the notice under Section 80 of the Code of Civil Procedure, virtually making the relief obstructive of the remedy provided by law. [100th Report, 1984, Law Commission of India]. 129. In other nations, legislation has been brought a new or amended to take care of claims of damages under public law for the violation of constitutional rights and modalities and procedures have been prescribed for guidance of the Tribunal or Courts. 130. Judicial review to award damages or grant of damages in public law by courts having the capacity to review administrative action, also became a matter of concern by the Law Commission of India when it published its report on damages in Application for Judicial Review; Recommendations for Legislation. Ninety-Second Report on Damages in Applications for Judicial Review: Recommendations for Legislation, August, 1983, of the Law Commission of India. Ninety-Second Report on Damages in Applications for Judicial Review: Recommendations for Legislation, August, 1983, of the Law Commission of India. The aspect which the Law Commission was referring to is best put in its own words : "the point to which we address ourselves is whether the power of the High Court in proceedings under Article 226 should, in the interest of justice, be enlarged so as to authorise the award of damages by the High Court. " [para 2. 2. , ibid. ]" 131. Noticing that the powers of the High Court under Article 226 are not confined to issue of prerogative writs known to English Law, the Law Commission was conscious of the fact that the Supreme Court of India had declared that the High Court can - "mould the relief to meet the peculiar and complicated require ments of this country. " [dwarka Nath v. I. T. O. , AIR 1966 SC 81 ]. 132. The Law Commission further acknowledged that the Supreme Court had declared that the High Court in writ proceedings could set aside an executive order whether or not a writ of certiorari was attracted to the circumstances. [irani v. State of Madras, AIR 1961 SC 1731 , And, further, that in appropriate cases declaratory relief may be granted. [b. B. L. & T. Merchants Association v. State of Bombay, AIR 1962 SC 486 ]. And not overlooking yet another decision of the Supreme Court that the High Court in a writ proceeding may also have the power to give the conse quential relief such as ordering repayment of the money realised without the authority of law or under an invalid law. [state of M. P. v. Bhailal, AIR 1964 SC 1006 ]. Notwithstanding this discussion, the Law Commission observed in its report that, however, it is generally estimated that the High Court cannot in such proceedings award damages for Administrative actions that caused harm illegally. On this the Law Commission proceeded to propose recommendations for legislation. [ninety-Second Report on Damages in Applications for Judicial Review: Recom mendations for Legislation, August, 1983, of the Law Commission of India, Para 2. 4 & 3. 1]. It was the recommendations of the Law Commission to amend the law and incorporate the reform in our law system. The recommendation is to the effect that a provision be enacted in a separate central Act under a suitable title. 4 & 3. 1]. It was the recommendations of the Law Commission to amend the law and incorporate the reform in our law system. The recommendation is to the effect that a provision be enacted in a separate central Act under a suitable title. A draft legislation finds mention in the report. [para 3. 2, ibid]. The Law Commission fur ther recommended that any change in law which takes place, must make it clear that the award of damages, in the context of the matter, is discretionary. [para 3. 2, ibid]. The Law Commission was also conscious of the fact that in today s context if the damages were to be claimed under ordinary law, regard being had to the prescription of law, an action would either end in frustration or fail. The biggest impediment to claiming damagers is Section 80 of the Code of Civil Procedure, 1908. On this aspect the recommendations of the Law Commission are- "3. 7. Recommendation to delete Section 80, Civil Procedure Code, 1908.- While carrying out the above changes in the law, it is also desirable that the provisions of Section 80 of the Code of Civil Procedure, 1908 requiring notice to be given where a suit is to be instituted against the Government or a public officer should be deleted. A recommenda tion to that effect has been made in successive Reports of the Law Commission and it is our most emphatic recommendation that the Section should disappear from the statute Book. Analogous provisions in other special laws should also be removed, as recommended already by the Law Commission in a separate Report on the subject. Such provisions are totally indefensible in modern society. The deletion of Section 80 of the Code, and of provisions analogous thereto as contained in special enactments, should be regarded as a substantive recommendation of our own. " [para 3. 7, ibid. ] 133. The Law Commission was also placing its concern on record that the interest of social justice are not advanced in the system of law as it is structure at present as it is not in confirmity with modern trend and substantive law of State liability of damages in public law needs a radical change. This is reflected in Chap ter 4 as under: "4. 1. This is reflected in Chap ter 4 as under: "4. 1. We may make it clear that the present report is not concerned with the position in substantive law as regards the liability of public authorities. The legal principles as to the cases in which relief can be claimed for Administrative illegality remains unaffected. How ever, we cannot help observing that it is desirable that the reforms already recommended on the subject by the Law Commission in various reports - Particularly, the recommenda tions relating to Government liability in tort - should be implemented as early as possible, in the interests of social justice and in conformity with modern trends. 4. 2. For the present purpose, we do not pause to consider the question of court fees on a claim for damages, when such claimed is included in an application for judicial review. " [para 4. 1 & 4. 2, ibid] 134. The Law Commission also took stock of the situation and changes which had been made in England, and the amendment which was brought about by the Supreme Court Act, 1981, finds mention in the report. What is also noticeable is the difference between the regard given to the report of the Law Commission of the United Kingdom and in comparison the neglect of our Government to the recommendations of the Law Commission in India on this significant but important issue re: examination of the changes in law. In the matter of claim for damages in public law, the English Law Commission gave a report on remedies in administra tive law in 1976. Following the report of the English Law Commission, within five years, came the Supreme Court Act, 1981. [para 5. 3, ibid]. 135. Today, the Court is considering the matter relating to the award of damages in a situation which has arisen out of a public tragedy which occurred in the months of September and October, 1994. When the Law Commission of India was submitting its Ninety Second Report on Damages in Applications for Judicial Review and making recommendations for legislation it had not under-estimated the scope of the measure of reliefs which could be granted by the High Courts in India while issuing prerogative writs. The theme of the report is that it would facilitate receiving a relief insofar as the citizen was concerned. The theme of the report is that it would facilitate receiving a relief insofar as the citizen was concerned. The Law Commission has in two reports emphatically drawn the attention of the Government that seeking damages in public law by an action based on a suit resting on a prior notice to the State is an archaic procedure. In fact, this is not a relief-giving procedure but the beginning of the end of it. While the report of the Law Commission lies in ar chives, 12 years have passed. 136. The Law Commission had not anticipated the sort of situation before this Court. The Law Commission was dealing with the liability of the State to an individual for constitutional wrongs. The Law Commission could not have imagined or visualised that a day would come when a High Court would be considering reliefs for violation of human rights arising out or a carnage not as a result of conflicting individuals or groups or ethnic conflicts but of injuries and death and rape of women by personnel on the Government pay roll and the law and order enforcement agencies. 137. Besides, much water has flowed under the bridge since the law Commis sion gave its report which the Government shelved. Courts in India view with concern human rights violations. Changes in legislation and bringing it is tune with modern times is one such reform. The Government must not wait for a tragedy to happen and even after that sit with mute silence to protect the violaters of constitu tional rights. The law does not recognise immunity for rank and status. On abetting violations of human rights, the world community can question any Government. 138. This Court is reminded of the observations of the Supreme Court that in situations of violation of human rights and for granting adequate and appropriate reliefs, the High Court will have to go and explore and forge new tools to reach social justice to victims. For the High Court me door has been opened. Lack of legislation cannot stop the High Courts in India, or leave them paralysed letting situations pass to be taken up by an archaic outmoded legislation which is ill-equipped to handled issues of tortious liability, whether under private or public law. For the High Court me door has been opened. Lack of legislation cannot stop the High Courts in India, or leave them paralysed letting situations pass to be taken up by an archaic outmoded legislation which is ill-equipped to handled issues of tortious liability, whether under private or public law. Legislation or no legislation, the discretion and powers of the High Court under Article 226 with Courts drawing their sanctity from the Constitution of India, is a broad spectrum to ensure that no citizen or class of citizen is left with a grievance that justice was not done to the cause which was brought to the High Court and especially, violation of the basic rights of man. The judgment in the present set of cases is only an exercise the High Court has ventured into with whatever tools are available to it. 139. Today, the Court is faced with a situation that in a class action for damages on suffering widespread tragedies, ought those who suffered be considered for exemplary damages in public law for constitutional torts by the agents of the State? In the proposition, it is not that the victims are not entitled to damages, as on this aspect the State Government when it sanctioned compensation without ref erence to the High Court, and during the pendency of these cases, accepted the principle stealthily. Only the adequacy and the form is in issue. Rape - Dignity of woman and the law : 140. The C. B. I. has reported that there was beastial behaviour: rape and molestation of the women from the hills. Insofar as the women are concerned, their Only sin is that they had joined a cause of political agitation to secure political rights already promised by their State. The rape and molestation happened within few hours on a certain night, and is not the rape of a solitary women by a serial rapist or a sexual psychopath. It is the sordid event of catching hold of women, feeling them and violating their privacy. This court is not making any reference to a trial. The trial will come much later, if it ever does, to conclude, as the trial will attempt to connect, beyond a reasonable doubt the aggressor and the victim. It is the sordid event of catching hold of women, feeling them and violating their privacy. This court is not making any reference to a trial. The trial will come much later, if it ever does, to conclude, as the trial will attempt to connect, beyond a reasonable doubt the aggressor and the victim. But what has concerned this Court is the satisfaction of an animal desire by abdicating all civilised conduct and respect for the privacy of a person. This matter needs much more attention for judgment of an issue which the State Government did not and does not accept. On record, every conceivable official of the State of U. P. has pretended to suggest to the Court that he does not know of these incidents because none were reported to him. Now, at least, the report is before them. Further, it is not that what is in the report was not within the knowledge of the State agencies before it came to the Court. 141. The official version of the defence of the State Government through its senior officials, arrayed as respondents, dismisses instances of rape in an off-hand cavalier fashion. They say, they are not aware of instances of rape as nothing was reported to them. Of the one to whom the matter was reported by pressmen and the media, the District Magistrate, Muzaffarnagar, the allegation against him is that he had declared that if a woman ventures to go alone into the fields, then, she is soliciting sexual assault. The District Magistrate denies this allegation. Whether he said it, whether he did not say it, the issue itself became the matter of a complaint before the Press Council of India and was reported in the media. Insofar as the High Court is concerned, the issue is not whether he said it or did not say it, as this can be sorted out between the District Magistrate and the Press. But, one thing is quite clear that the press made it known to the District Magistrate and nationwide, that at Rampur Tiraha, a carnage took place. Travellers and civil rights activists were fired upon and killed and women molested and raped. Insofar as the officials of the district and the District Magistrate are concerned they cannot pretend that no one reported the incident to them. It may be that the victims never came to them. Travellers and civil rights activists were fired upon and killed and women molested and raped. Insofar as the officials of the district and the District Magistrate are concerned they cannot pretend that no one reported the incident to them. It may be that the victims never came to them. In cases of rape worldwide criminologists have noticed one phenomenon. The Court can do not better than recall what had been the subject-matter of com ment on this very aspect in the 1977 Columbia Law Review Vol 77, page 5: "in assessing the foregoing figures, one must take into account another highly sig nificant fact: Rape is probably one of the most under-reported crimes. Reluctance to report serious offences poses a problem for the criminal justice system in general. Fifty to eighty percent of such crimes may never enter statistical rolls because victims, for reasons ranging from fear of reprisal to belief that nothing will ever the done, fail to make official complaints. Estimates of the actual incidence of rape, however, range from three and one half to twenty times the reported figure! The systems perceived hostility to the rape com plainant, coupled with the singular shame and trauma of sexual assault, may well explain this troubling phenomenon. 142. Any examination of rape as a violation of the privacy of a woman will have to be seen in the context or her society. The tabboos of a society differ from community to community, nation to nation. In every nation, every father and mother advise their daughter, as a generality, in a case of rape, to stay out of court. The reason is that the trial of a rape case is a harrowing experience for a woman. The histrionics and playing to the gallery for the prosecution and the oratory of lawyers is a shock treatment and a disturbing experience for the woman who is a victim. An allegation of rape against a woman in India in particular is as good as death. Instances are also not unknown that an allegation of rape itself has taken a woman to the brink of suicide. 143. The consequence of an allegation of rape has been the subject-matter of comment by law experts. An allegation of rape against a woman in India in particular is as good as death. Instances are also not unknown that an allegation of rape itself has taken a woman to the brink of suicide. 143. The consequence of an allegation of rape has been the subject-matter of comment by law experts. The concensus is, to the effect, that the law failed to protect a woman who has been raped as there is widespread belief that the very treatment of rape victims by the legal process discourages them from reporting crimes. Is it not in these very cases before the Court that the official agencies have taken a defence that no incident of rape was reported? 144. Again, the situation before the Court is different and is unparalleled in a civilised community, and heard of only in the tales of the mediavel ages of the plunder and pillage by the victors and the abuse of the women of the vanquished. 145. This Court does not, insofar as the violation of human rights are concerned, see any difference between molestation and the rape of a woman. The issue is not one of logic as the High Court is not going to find out on what was the nature of rape in the matters before the Court. These are matters for the trial. India, the reality of the situation cannot be ignored that of all the women molested, out of modesty they may not be acknowledging rape. The subject itself is distasteful to any woman as a semantic discussion on the degrees of rape, and, the High Court is not going through a filteration system to find out on how many were, in fact, molested and the degree of rape, the quality of it and committed by how many. But one thing the High Court does know that of those who were molested or rape for the girl or the woman who was the victim, she is on the horns of a dilemma; how to go on living? 146. The cavalier manner in which the State-respondents have brushed aside the allegations of rape referred to by the petitioners in these cases cannot lend them any escape from then vicarious responsibility for what took place in the incidents at Muzaffarnagar. 146. The cavalier manner in which the State-respondents have brushed aside the allegations of rape referred to by the petitioners in these cases cannot lend them any escape from then vicarious responsibility for what took place in the incidents at Muzaffarnagar. Certain observations of the Supreme court in re: Karnel v. State of M. P. , 1995 (5) SCC 518 : 1995 JIC 1139 (SC) specifically on this aspect of rape victims informing or complaining of the aggression which was made on their modesty are relevant and need to be noted by the State-respondents : ". . . . . . . . In India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less than promptly does not raise the inference that he complaint was false. The reluctance so go to the police is because of societys attitutde towards such/women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate. that her version is false. " "in State of Maharashtra v. Chandraprakash Kewakhand Jain this Court speak ing through one of us (Ahmadi, J.) had occasion to point out that a woman who is a victim of another personss lust and therefore her evidence need not be tested with the same amount of suspicion as that of an accomplice. She is not in the category of a child witness or an accomplice and therefore the rule of prudence that her evidence must be corroborated in material particulars has no application, at the most the court may look for some evidence which lends assurance. " 147. Also not to be forgotten are the observations of the Supreme Court in the matter of State of A. P. v. Bodem Sundara Rao, 1995 (6) SCC 230 : 1996 J1c 1 (SC), arising out of a rape case where the reduced sentence by the High Court was held to be in error, while increasing the sentence the Supreme Court observed: "in recent years, we have noticed that crime against women are on the rise. These crimes are an affront to the human dignity of the society. These crimes are an affront to the human dignity of the society. Imposition of gross ly Inadequate "sentence and particularly against the mandate of the Legislature not only is an injustice to the victim of the crime in particular and the society as a whole in general but also at times encourages as criminal. The courts have an Obliga tion while awarding punishment to impose appropriate punishment so as to respond to the societys cry for justice against such criminals. Public abhorrence of the crime needs a reflection through the courts verdict in the measure of punishment. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of the ap propriate punishment. 148. It will be very difficult for this Court to ignore the dignity [section 2 (d), the Protection of Human Rights Act, 1993], element which goes into the concept of human rights (ibid), a concept of statutory recognition today. Dignity envelopes modesty. And what modesty is to a woman can be reflected no better than the observations of the Supreme Court, reiterated below: "14. Since the word modesty has not been defined in the Indian Penal Code we may profitably look into its dictionary meaning. According to shorter Oxford Dictionary (3rd Edn.) modesty is the quality of being modest and in relation to woman means "womanly property of behaviour; scrupulous chastity of thought, speech and conduct". The word modest in relation to woman is defined in the above dictionary as "decorous in manner and conduct; not forward or lewd; shamefast". Websters Third New International Diction ary of the English Language defines modesty as "freedom from coarseness, indelicacy or indecency; a regard for property of behaviour; scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sence of shame proceeding from instinctive aver sion to impure or coarse suggestions. " 15. In State of Punjab v. Major Singh (supra) a question arose whether a female child of seven and a half months could be said to be possessed of modesty which could be outraged. In answering the above question Mudholkar, J. , who along with Bachawat, J. , spoke for the majority, held that when-any act done to or in the presence of? In answering the above question Mudholkar, J. , who along with Bachawat, J. , spoke for the majority, held that when-any act done to or in the presence of? woman is clearly suggestive of sex according to the common notions of mankind that musi fall within the mischief of Section 354, IPC. Needless to say, the "common notidious of mankind" referred to by the learned Judge have to be gauged by contemporary societal standards. The other learned Judge (Bachawat, J. ,) observed that the essence of a womans modesty is her sex and from her very birth she possesses the modesty which is the attribute of her sex. From the above dictionary meaning of modesty and the interpretation given to that word by this Court in Major Singh case it appears to us that the ultimate test for ascertain ing whether modesty has been outraged is the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman. When the above test is applied in the present case, keeping in view the total fact situation, it cannot but be held that the alleged act of Mr. Gill in slapping Mrs. Bajaj on her posterior amounted to "outraging of her modesty" for it was not only an affront to the normal sense of feminie decency but also an affront to the dignity of the lady - "sexual overtones" or not, notwithstanding. " [rupan Deal Bajaj v. Kanwar Pal Singh Gill, 1995 (6) SCC 194 : 1995 JIC1155 (SC)] 149. Where are the factors of rehabilitation and social security for a woman in India? Therefore, any mitigating circumstances for rape has to be different from other societies and oriented to our nation. Further, an attack within the short span of a couple of hours against the same community of women, tearing and violating their privacy and the lascivious lechery even puts to shame the definition of human rights. The Court, thus, will treat victims or rape and molestation as being in the same category as the dead, as far as the degree or damage is concerned. Prosecution of officials : With or without sanction ? 150. The Court, thus, will treat victims or rape and molestation as being in the same category as the dead, as far as the degree or damage is concerned. Prosecution of officials : With or without sanction ? 150. A matter which has been very seriously debated on behalf of the petitioners on which no response worth the name has been forthcoming on behalf of the State of U. P. is the aspect of prosecution of those officials who were directly or indirectly, or as abettors, connected with the offences which have now been reported by the C. B. I. , in the matters of the inquiries ordered by the Court as a consequence of the directions of 7 October, 1994. The State of Uttar Pradesh and challenged the order of 7 October, 1994 by which the Allahabad High Court had directed the C. B. I. , to enquire into all matters of violations of human rights or con stitutional torts. The petitioners have complained that after the C. B. I. , had sub mitted its reports at about the time when learned Additional Solicitor General of India had presented arguments on its behalf in January, 1995 and after the order of 6 April, 1995, when the reports of the C. B. I. had been made public, there is no excuse for the State of Uttar Pradesh and/or the Union of India, as the case may be, to withhold the permission for the prosecution of the alleged offenders, sought by the C. B. I. The contention is that petty bureaucracy is being permitted to be prosecuted by the State of Uttar Pradesh, while high ranking officials are moving around scot tree with complete assurance of immunity when on record it is clear that wherever violations of human rights had taken place, who ever was incharge of any particular Tehsil, District, Division or any other area, is not unknown and a matter of record. Unless any official ran away from the scene, which is itself is an offence and dereliction of duty, on whatever has happened as inquired by the C. B. I. , crimes have taken place and the liability vicarious or otherwise for human rights violations would be of the abettors or those who conspired. The degree of criminal intents, the trial will reveal. The officials involved, today, are in the status of ac cused. The degree of criminal intents, the trial will reveal. The officials involved, today, are in the status of ac cused. Prima facie, it was acknowledged by the Additional Solicitor General of India that sufficient material is on record that human rights had been violated and constitutional torts were committed. The contention of the petitioners is that politics appears to be shielding the high officialdom involved, while the State Government is not unaware of the heinous crimes which have taken place. The officials, in whose jurisdiction the crimes were committed far from being proceeded against, have been rewarded with promotions. The petitioners prayed to the Court that the officials incharge of the places where human rights had been violated be suspended by the orders of the Court. The court in the order of 12 January, 1995 had given an answer to this that any information which the Court has, the State Government also has and it is not that the latter is without prima facie assessment on what may have gone wrong and it is entirely upto the State Government to take prompt actions as warranted by the circumstances. It is not the credibility of the Court which is at stake, when in this post independence era mass scale human rights violations have occurred arising out of a common cause on a political guarantee. The agitation was only to secure what was promised, and what happened m reaction left death, rape and molestation and surreptitiously buried bodies. And there is an abject silence on behalf of the State Government. 151. The C. B. I. , has reported in more than one report that it has sought sanc tion of the State of U. P. for the prosecution of the officials inquired, investigated and reported to the Court, but it had not been forthcoming. That the C. B. I. , has applied for sanction for the prosecution of the officials who face allegations in its report, but sanction on the charge-sheets was not forthcoming from the State of Uttar Pradesh is in itself a bad situation which needs to be reflected upon seriously. This matter has not been rendered redundant. That the C. B. I. , has applied for sanction for the prosecution of the officials who face allegations in its report, but sanction on the charge-sheets was not forthcoming from the State of Uttar Pradesh is in itself a bad situation which needs to be reflected upon seriously. This matter has not been rendered redundant. While due process of law means that no persons shall be tried except according to the procedure established under law, its corollary also is that no person shall escape trial which the law obliges him to face in accordance with the procedure established by the law. 152. Immunity to a State official for an alleged crime can only be short lived. The theory of an act in the discharge of official duty may affect tortious liability, but cannot frustrate a trial investigating constitutional torts. The law in itself con templates not absolute immunity, but prosecution with permission of the Govern ment. There are no different standards in criminology for a Government official and a person who is not a Government official. Then equality clause of the Con stitution applies to both. It is not immunity but prosecution upon sanction. The rule is of administrative monitoring so that the State is aware to the extent of official embroilment in crimes. The law is not tailored to protect State-aided crimes. 153. This is itself has required this Court to examine the silence of the State of Uttar Pradesh in not batting an eye-lid after such a heinous tragedy has occurred in which injuries have been suffered and inflicted on the people of the State of Uttar Pradesh in generality and those of the hills in particular. The clause of prosecution by sanction resides with the content of the crime alleged and the tragedy oc casioned as a result of the crime. Bureaucracy is a necessity and means to the func tion of a Government, not oppression. Harassment to a citizen may invite an action for damages. If prior notice under Section 80 of the Civil Procedure Code, 1908, is misunderstood as protecting bureaucracy, then it is not so. This notice under Sec tion 80 is only a caution of what action may be put into Court and the purpose is to attempt to redress a grievance first without involvement in Court proceedings. The purpose is not to Kill (sic), an action. This notice under Sec tion 80 is only a caution of what action may be put into Court and the purpose is to attempt to redress a grievance first without involvement in Court proceedings. The purpose is not to Kill (sic), an action. The conceptual notice under Section 80 has been the subject- matter of much concern by the law Commission of India, which has in no uncertain terms repeatedly observed that Section 80 should be wiped out from the statute books. 154. Prosecution of Government officials by sanction of the Government is a matter which has been referred under Chapter XIV of the Code of Criminal Procedure, 1973. This Chapter deals with conditions requisite for initiating proceedings for prosecution of Government officials. The grant of sanction for the prosecution of officials on which the State of Uttar Pradesh and been delaying. Is an issue which was being kept alive first by the State of U. P. and later by the officials who challenge the sanction permitted to file charge-sheets against them. These are matters which relate to taking serious cognizance of alleged offences involving more than one public servant for heinous crimes which have already taken a toll of not only one, but a class of people. If the Courts will not investigate by trial, the State of Uttar Pradesh and the Government of India will always remain answerable. A State of a republic does not commit a crime, it protects its citizenary from it. The law is tailored on this theme. Let us see if this is so. Prosecution of Public servants of offences is provided in Codes of criminology under Chapter IX of the Indian Penal Code, 1860 on the commission of offences and under Chapter XIV of the Code of Criminal Procedure, 1973 for the conditions requisite for initiation of proceedings. The law does not expect public servants to violate the law; when they do they are provided for. Now the matter of prosecution of public servants. It is provided for under Section 197; previous sanction before proceeding is referred in this provision. It reads : "197. The law does not expect public servants to violate the law; when they do they are provided for. Now the matter of prosecution of public servants. It is provided for under Section 197; previous sanction before proceeding is referred in this provision. It reads : "197. Prosecution of Judges and public servants.- (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction- (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government. " (The provisions which relate to offences occasioned during the period of an emergency under Article 356 of the Constitution of India or aspects relating to members of the armed forces, have been deleted from reproduction as above.) 155. Before the Court considers the aspect of the sanction for prosecution which was not forthcoming from the State of Uttar Pradesh, which sanction the C. B. I, had been anticipating and awaiting the perspective on the discretion to consider sanction for prosecution must be very clear. The issues before the Court are human rights violations or constitutional torts. A prima facie inquiry by the C. B. I. , a federal Government investigation agency, has revealed that in the incidents which a rose out of confronting agitations from the people of Kumaon and Garhwal asserting their civil, civic and political rights, there were deaths by firing, injuries, concealing the information of deaths, not handing over the deadbodies to the relatives of those who had died, and rape and molestation of women. All these incidents are instances of human rights violations. All these incidents are instances of human rights violations. But, to leave a defence on official record so as to declare that the incidents may not have happened, the prima facie finding of the C. B. I, is that there has been tampering with the official police records, destruction of the records, substitution of the records, firing by automatic weapons and use of fire-arms on unarmed people, loot and plunder of the civil rights agitators and rape and molestation of their women. The statutory question is whether all this is in the discharge of official duty as to require sanction for the prosecution of all those who have indulged in whatever the C. B. I, may have reported? Is it any part of the official duty of any official to tamper with official records, erase official records, destroy official records or supplant official records by making originals disappear? Are these not acts which relate to tampering of evidence which may ultimately affect the trial itself? And, are not the acts in themselves crimes against public justice? Is firing on unarmed civil rights activists part of official duty? Is molestation and rape of girls and women who are either political activists or political dissenters part of the sovereign function of any State? Is conspiracy to commit a crime whether by tampering of records or rendering an official record otherwise than its truthful state all actions which could be an act in the discharge of official duty? Is burying a deadbody, with parents seeking it but beingdenied, part of official function? 156. In the matter of prosecution of a public servant with the sanction of the Government for offences alleged to have been committed by him while acting or purporting to act in the discharge of his official duty and the Court not taking cognizance of such an offence except with the previous sanction of the Government concerned, has been examined by the Supreme Court. The matters before the Court are not matters which have arisen out a complaint case. These are matters which have been enquired prima facie by an investigating agency which itself can be said to have the statute of a State. As opposed to a complaint case, the prosecution, which the C. B. I, intends on the basis or the inquiries and the investigations made by it, would be on the filing of a charge-sheet. These are matters which have been enquired prima facie by an investigating agency which itself can be said to have the statute of a State. As opposed to a complaint case, the prosecution, which the C. B. I, intends on the basis or the inquiries and the investigations made by it, would be on the filing of a charge-sheet. Even in the matter relating to offences complained of by a complainant against a Government official, the Supreme Court held that it is not always necessary that the need for sanction should be considered as soon as the complaint is lodged and on the allegations contained therein. The question may arise at any stage of the proceedings. The complaint may not disclose all the facts for the purpose, but facts subsequently coming to light on police or judicial inquiry or even in the course of a prosecution, evidence may establish the necessity for sanction. [matajog Dubey v. H. C. Bhari, AIR 1956 SC 44 ; Ram Nath v. Saligram, AIR 1967 All 519 ; B. P. Srivastava v. N. P Mishra, AIR 1970 SC 1661 ; Pujdiraj v. State ofrajasthan, AIR 1973 SC 2591 ] 157. The interpretation on this aspect was extended by the Supreme Court when it held that without confining itself to the allegations as are made in a com plaint, the Court can take into account all the materials on the record at the time when the question is raised and falls for consideration whether the complaint has been brought into court with or without sanction. At the time when a Magistrate takes cognizance of a complaint brought into court, the only thing which is to be seen is whether the acts alleged against the accused can be said to be in purported execution of his duty. Though, facts subsequently coming to light during the course of trial may establish the necessity for sanction and whether the sanction is necessary or not may have to differ from stage to stage. Ibid 158. Though, facts subsequently coming to light during the course of trial may establish the necessity for sanction and whether the sanction is necessary or not may have to differ from stage to stage. Ibid 158. It was in the matter of Pukhraj (supra) that that the Supreme Court held that the necessity for sanction may reveal itself in the course of the progress of the case and it would be open to the accused to place the material on record during the course of trial for showing what his duty was and also the acts complained of were so inter-related with his official duty so as to attract the protection afforded by Section 197. This decision of the Supreme Court revealed that even in a complaint case it is the Court which will go into the question of the applicability of the rule of sanction before a prosecution proceeds and further how much the official act is related to official duty so as to give immunity from prosecution. There is no immunity from the premises that steps for prosecution cannot be proceeded with. A State is obliged to prosecute its functionaries, when crimes are revealed by investigation. Whose obligation is it to investigate? The States. And whose obligation would it be to prosecute when an investigation reveals a crime? Would it not be the State? Then, where is the question of sanction to prosecute when a charge- sheet duly investigated, obliges the State to take a matter to trial? 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. [state of West Bengal v. Sam- pat Lai, AIR 1985 SC 195 ]. 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. 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. The charge-sheet must be filed as an obligation of the law, wherever it has to be so that the trial proceeds. 159. All acts done or purporting to be done by a public servant in the discharge of the official duty and whether the acts are to he within the scope of his official duty was examined in a matter by the Privy Council. The following observation of the Privy Council needs to be reflected upon : "a public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. This, a judge neither acts nor purports to act as a judge in receiving a bribe, though the judgment which he delivers may be such an act; nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining though the examination itself may be such an act. The test may well be whether the public servant if challenged can reasonably claim that what he does, he does in virtue of his office. " [h. H. B. Gill v. The King, AIR 1948 PC 128]. 160. What is or is not part of official duty so that the matter may be examined for trial, with or without sanction, has engaged the attention of many High Courts. Some important aspects need to be reiterated. The beginning of the premises is the status of a Minister, the highest functionary of a Government. Government sanctions are not to be forthcoming because of political protection or an inherent protection of the bureaucracy. If either of these conditions happen, both institu tions whether the Minister or the bureaucracy, would be abetting alleged crimes. The Minister of a State is a public servant. [m. Karunanidhi Union of India, AIR 1979 SC 898 ; Shiv Bahadur Singh v. State of V. P. , AIR 1953 SC 394 ; Emperor v. Shibnath Banerji, AIR 1945 P C 156. 161. The Minister of a State is a public servant. [m. Karunanidhi Union of India, AIR 1979 SC 898 ; Shiv Bahadur Singh v. State of V. P. , AIR 1953 SC 394 ; Emperor v. Shibnath Banerji, AIR 1945 P C 156. 161. It is no part of official duly to lose temper and abuse and assault or do things far removed from capacity as a public servant. [dowlath v. Dey, 1953 (2) MLJ 28 ]. The act of tampering with a search memo by police officials while the search memo was in custody of the court could not be an act purported to have been done in the discharge of official duty, and, thus, it was held that previous sanction of the Lt. Governor was not at all necessary for initiating the proceedings against the officials concerned. [balbir Singh v. D. N. Kadian, AIR 1986 SC 345 ]. To consider the grant of a sanction is an obligation and to necessitate it, there must be a reasonable connection between the act and the discharge of official duty. The act must bear such relation to the duty that the official could lay a reasonable but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. [shreekantiah Ramayya Munipalli v. State of Bombay, 1955 (1) SCR 1117 ; Amrit Singh v. State of Pepsu, 1995 (1) SCR 1302]. When a search warrant was resisted by the complainant and the allegation was that there was hurt and wrongful confinement, sanction was necessary as they could reasonably claim that in order to clear the obstruction what they did was in discharge of official duty. Whether they used more than reasonable force would be fittingly inquired into during the proceedings. It does not matter if the acts were strictly necessary for the discharge of his duty, what has to be found out is whether the act and the official duty were so interrelated that one could postulate reasonably that it was done by the accused in the performance of official duty though possibly in excess of the needs and require ments of the situation. [matajog Dubey v. H. C. Bhari, AIR 1956 SC 44 ; Prabhakar y. Shanker, AIR 1969 SC 686 ]. [matajog Dubey v. H. C. Bhari, AIR 1956 SC 44 ; Prabhakar y. Shanker, AIR 1969 SC 686 ]. The sine qua non for the applicability of Section 197 is that the offence charged, be it one of commission, or omission, must be one committed by the public servant either in his official duty or under colour of his office held by him. It is the quality of the act that is important, and if if falls within the scope and range of his official duties, protection of Section 197 will be at tracted. [s. B. Saha v. M. S. Kochar, AIR 1979 SC 1841 ]. Consequently, where a Min ister assaults an officer within secretariat premises, the act is not connected with the official duty and no sanction is needed. [jatin Chakraborty v. B. K. Chakraborty, 1979 Cr. L. J. 1802 (Cal)]. Offence of cheating or abetting another so to cheat is not in discharge of official duty. [manohar Nath v. State of J. &k. , AIR 1983 SC 610 ]. Thus, to sum up there are acts in the discharge of official duly; acts done which are not pan of official duly and even if done during the course or official duty should it border on the commission of an offence, the degree or the gravity of it becomes one of accountability and sanction ought to be forthcoming. Sanction for prosecu tion logically does not protect a crime any more than the withholding of it does. It reflects on the accountability of the Government. 162. In the present cases, 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. These are cases which do not require sanction for putting the charge-sheets into court. The C. B. I. , should proceed to file the charge-sheets without tear or favour on matters which are the subject- matters of investigation and on which reports have been submitted to the Court on human rights violations, whether the sanction of the State of U. P. is forthcoming or not. 163. The C. B. I. , should proceed to file the charge-sheets without tear or favour on matters which are the subject- matters of investigation and on which reports have been submitted to the Court on human rights violations, whether the sanction of the State of U. P. is forthcoming or not. 163. The C. B. I. , has been reporting repeatedly that upon investigations reveal ing a prima facie case against the officers of the State of U. P. , the circumstances warrant their prosecution to stand trial for alleged crimes under the Penal Code. The C. B. I. , refers to acts of officers against whom it has reported, of acts resting on a conspiracy. The Court views them as constitutional torts and human rights violations. When human rights stand violated and constitutional torts have been com mitted what is the obligation of the State in a republic? Is it for granting State protection against inquiry into crimes? 164. The first equality clause of the Constitution of India, is seen more as a right seeking provision and to assert equality against discrimination. The Right of Equality is only an arch which bridges the two columns upon which it stands and what it stands upon is the State. The two pedastals on which the Right to Equality stands are, first, not to be denied equality before the law and, second, the equal protection of the laws. The Constitution of India does not contain the expression "the Rule of Law", but, if every right of a citizen flows from a corresponding obliga tion, then this is also true for a State. The first equality clause of the Constitution of India is enmeshed in the concept of the Rule of Law. Lawyers, journalists and academics have theorised on the meaning of this expression. The meaning of it is to be understood in its simplicity. When a policeman at a road crossing monitors traf fic to signal it to a halt, and halt it does, the Rule of Law is in the process of its making. How? In that traffic are big men, small men, poor and tycoons, bureaucrats and politicians, judges and teachers, the law requires all Of them to conform to it without favour. This is the Rule of Law. To go by the law and act according to it. 165. How? In that traffic are big men, small men, poor and tycoons, bureaucrats and politicians, judges and teachers, the law requires all Of them to conform to it without favour. This is the Rule of Law. To go by the law and act according to it. 165. While this judgment has been reserved the media is agog with the news that the State of Uttar Pradesh has been hesitant in considering prosecution of the officials who are alleged to be involved in the violation of human rights or abet ment to them. Initially it has denied permission to prosecute. Later it accorded sanction to prosecute petty officials. Then, when Presidents rule was promulgated, sanction to prosecute included the heads of administration also. But, this Court has already held that in the facts and circumstances of these cases seeking of sanction by the C. B. I. was misplaced and for the grant of it or otherwise the question does not arise. But, what is the State Government, constituted of? The very officialdom whose conduct will be under judgment at a trial. Can a law ward off a trial inquir ing violation of constitutional torts, human rights and the Penal Code? Which law and by whose sanction? Such a law has yet to be born. 166. But, the submission of the State Government as already recorded in the proceedings was that it would submit nothing but would await the High Courts Judgment to consider action against the erring officers. This stand of the State of Uttar Pradesh was taken when the petitioners made an argument that the officers concerned be suspended by orders of the Court. The orders recording the proceed ings when the Additional Solicitor General of India, Mr. K. T. S. Tulsi, addressed the Court need to be recalled : * * * * Winding up his submissions learned Additional Solicitor General submitted that the report be examined by the Court for its perusal, priorities be set by the court for the CBI on the investigation undertaken by it; the time to submit the report be enlarged. In reference to the incident and relating to the order of 7 October, 1994, learned Additional Solicitor General submitted that the officials of the State Govern ment be either transferred, suspended or dismissed. In reference to the incident and relating to the order of 7 October, 1994, learned Additional Solicitor General submitted that the officials of the State Govern ment be either transferred, suspended or dismissed. It was further contended that security be provided to the persons who are being investigated, on whose security the CBI may recommend. It is understood that the CBI can address this recommenda tion to the State of U. P. direct. In the submissions at the Bar the petitioners joined the arguments of learned Additional Solicitor General initially beginning with the proposition that certain State Government officials be transferred, suspended and dismissed. Reiterating the argu ments of learned Additional Solicitor General that the preliminary report be opened and made public or, if not, seen by the Court atleast. Learned counsel appearing on behalf of the State Government, Mr. S. N. Verma, Senior Advocate, submitted that he would not like to make any substantial submissions at this stage and would reserve submissions after the CBI has filed its report and insofar as taking any action against the officials is concerned, the conten tion was, to the effect, that if the court were to order it so, the State Government would act on the order so passed. Insofar as the submissions relating to the transfer, suspension or dismissal of the officials are concerned, and it does not matter who has made this submission, the Court is very clear in its mind that this is a matter which the State Government has to assess for itself, as the Court, will only be in a position to offer its comments when a final report is filed, in these proceedings and, thus, the Court, at present, declines to pass any order against any official as it is not that the State government is without assessment on whatever be the State of record already in its possession. " [extract from the proceedings recorded in the orders of the High Court on 12 January, 1995j. 167. While this matter engaged the attention of the Court, the options before the State Government of Uttar Pradesh were clear but limited after it recorded a statement, in reference to any action against officials on crimes alleged against them, that if the Court were to order it so, the State Government would act on the order so passed. 168. These cases are no ordinary matters. 168. These cases are no ordinary matters. Who has committed constitutional torts or offences under the Penal Code or violated human rights, and to be con victed beyond a reasonable doubt, or acquitted on doubt, only the trial will reveal. But, there is neither any issue nor any doubt that constitutional torts have not been committed, or that human rights have not been violated and or offences and crimes under the Penal Code have not been committed. Neither the High Court nor the State Government should come between the due process of law taking its course is checking out all, without favour or fear, directly or vicariously, who were respon sible for the carnage and the crimes which were committed against those who were agitating for a political cause. 169. After the Government of the State of Uttar Pradesh had filed pleadings in these several cases before the Court, including the erstwhile Chief Minister by his personal affidavit and the record is reserved to the Court to enter a judgment, the Court is disappointed to read agency reports in the newspapers. [the Times of India, Lucknow, dated 14 October, 1995. The Hindu, Delhi, dated 10 October, 1995 Amar Ujala, Kanpur, dated 14 October, 1995. Swatantra Chetna, Allahabad, dated 10 October, 1995. Dainik Aai, Varanasi, dated 10 October, 1995] carrying state ments of the Honble Chief Minister commenting on the merits of the proceedings and the prosecutions, against whoever it may be, that a certain group of officers in administration cannot be prosecuted; there is no material against them; that they were carrying out orders to search the civil rights activists proceeding to Delhi in busloads; that the Law department has advised that sanction to prosecute cannot be granted to the C. B. I. and that it is the then Chief Minister Mr. Mulayam Singh Yadav, who is guilty. The statements in the national newspapers are attributed to the last Chief Minsiter of Uttar Pradesh, the Honble Ms. Mayawati. This Chief Minister is not a personally arrayed party respondent to the writ petition; her predecessor was. Today, to say that her predecessor was guilty of the crimes on constitutional torts or human rights violations, the Chief Minister was creating evidence to fortify a prosecution. She was the Government and the Head of it. She may be the prosecutor and yet by law the Chief Minister, may also be prosecuted. Today, to say that her predecessor was guilty of the crimes on constitutional torts or human rights violations, the Chief Minister was creating evidence to fortify a prosecution. She was the Government and the Head of it. She may be the prosecutor and yet by law the Chief Minister, may also be prosecuted. Tb blame her predecessor-in-price on allegations of crimes the last Chief Minister should have good and sufficient reasons for her testimony. To say that the officers in charge of administration are not responsible as they were only carrying out or ders, the lat but one Chief Minister has accepted that crimes were committed. It is not for her to sort out the abettors and the conspirators and the committers, and the escapers or the ones vicariously involved. Tip carry out orders is one thing but-no order which has had the result in the commission of a crime can be condoned. For every man who commits a crime will be answerable to the law in its due process as those who have suffered the crimes are equally entitled to call to ac countability those who committed them. The statement of the last Chief Minister, in context, states that the officers were required to search the travelling activists, from Kumaon and Garhwal, proceeding to New Delhi. That may be. But if this was so then the Administrative control continued with those who administered, monitored and directed the searches. 170. What sort of an Administrative control was it that it led to killings by firing, looting of travellers, snatching of ornaments off the person of women pas sengers, and molestation, rape and gang rape of women and young girls? What sort of an Administrative callousness created such unchecked licence to commit crimes? Even the High Court, at present, cannot fix the guilt of those who are alleged to have committed crimes, and the State is obliged to book them for trial. The guilt, only the trial will reveal. The last Chief Minister has reflected on the vicariousness of the responsibility of alleged crimes. But, this aspect, one that crimes were com mitted on which there is no issue, and second, who or how many or in concert committed them, is a matter which is deeply sub-judice. The guilt, only the trial will reveal. The last Chief Minister has reflected on the vicariousness of the responsibility of alleged crimes. But, this aspect, one that crimes were com mitted on which there is no issue, and second, who or how many or in concert committed them, is a matter which is deeply sub-judice. Apart from the investigat ing agency, to attribute a charge of accusation or pronounce the guilt or innocence of a precipitate crime is the business of the investigation and the court of law. This is the law. To say that officials, whose prosecution by sanction was sought by the C. B. I. , had not or have not committed the crimes alleged, and that also in a sub-judice matter and that it should be said by a Chief Minister, is violation of a con stitutional obligation and a privilege. It is violation of a constitutional obligation that in a sub-judice matter where the action of the Government and its officials is in issue, comments should be occasioned outside the Bar of the court. It is breach of privilege in the discipline of politics and of the Constitution that what proceeds in court the Legislature or its constituents may not discuss within or put of house on which rests the corresponding corollary that what the House discusses the courts shall not question. Parliamentary democracy is enmeshed with these delicate nuances some written within the Constitution and others understood. 171. With crimes against humanity leaving the ravages to be seen in shame by the whole nation, the declaration of a Chief Minister, that the officials were only carrying out orders, brings back memories of the defence taken by the accused before the Tribunal trying war-crimes at the Nuremberg Trial. This defence did not work with that Tribunal. The crimes of the Nazi era were on trial, and the Third Reichs credibility was debased into history. Let not the international community says that India does inquire into violations of constitutional torts and human rights effectively but in favour to and fear of the privileged who sustain such wrongs. 172. At every juncture and the slightest available opportunity every possible escape from the examination of the issue in the writ petition or to thwart the inves tigation of alleged crimes has been attempted by the State Government or some of its officials arrayed as respondents. 172. At every juncture and the slightest available opportunity every possible escape from the examination of the issue in the writ petition or to thwart the inves tigation of alleged crimes has been attempted by the State Government or some of its officials arrayed as respondents. The incidents that occurred at Khatima or Muzaffarnagar, and other places also, have not been accepted with regret. In the answers to the writ petitions, in affidavit after affidavit, the officers of the State plead ignorance of killings at Khatima and of the disappearing bodies of the dead and it was suggested to the Court, that the dead are missing. No knowledge is accepted of the molested women and the rape of them and the gang rape of yet others at Muzaffarnagar. The defence, which the Court dismisses, is that no one came to report on these crimes. As if this could be any reason to presume that crimes were not committed like Nero of Rome who was least concerned while the city blazed; the readiness of the higher ranks in administration to dismiss the tragedies on which the C. B. I. has reported, reflects sadly on the Government of the people, by the people and for the people. There is no issue that what occurred had not happened. On whatever may have happened an official agency investigated on orders of the High Court. The State Government of Uttar Pradesh and its con cerned officers in administration challenged the orders of the High Court ordering an inquiry, at the Supreme Court, but failed. The balance of the case which remained was, in effect, to answer the issue whether human rights had been vio lated? And if the answer is in the affirmative, then, the consequential relief will not be found in the mundaneness of routine causes in courts of law which deal with ordinary people embroiled in the cancer of litigation between themselves or the State and them. 173. In the matters before the High Court there was no intention nor premeditation to litagate. The narration of events, as on record, reads like descrip tion of destruction after a storm or ravages after war. In such situations, reliefs will have to be moulded by the High Court in a situation befitting the self respect and ethos of the people of the class who suffered. The narration of events, as on record, reads like descrip tion of destruction after a storm or ravages after war. In such situations, reliefs will have to be moulded by the High Court in a situation befitting the self respect and ethos of the people of the class who suffered. Crime apart, what came to pass on the civil rights activists from the hills of north Uttar Pradesh, was, to put it in a nutshell, sufference of delinquency by official delinquents. 174. A Code of conduct for human relations provides for such situations; the law is not barred in providing justice. And, the courts are not impotent in being able to engineer reliefs in aid of the suppressed. Dignity of life is in issue before the Court. To those who deprave life, liberty and human values and civilised conduct, the High Court has an answer. But, first a few rhetorical questions, put in simplist terms. Would the orders of a State to shoot to kill, heal the hurt of a mother and father of a shot son, widow of a shot husband? Would it cleanse the scar of a raped virgin a daughter, someones mother, anothers wife? Does public law provide for moral wrongs if criminal and penal laws cater only to book the violators? 175. Law is no exception to evolution. Social change is not the only factor which moulds the law. Law Develops with society. But law react to be sensitive to noxious and baneful conduct. And if law will not adapt itself to social change and rise to meet testing times, it will be a death knell of even a sophisticated judicial system. 176. A civilised Code of human conduct is what law is about. The first source upon which the Court draws to receive an answer is the Constitution of India. Beligerence and violence is what the Court has as issues before it. That people may misbehave is the ugliness in the conduct of human affairs. But, the constitution seeks certain obligations from the State. The first source upon which the Court draws to receive an answer is the Constitution of India. Beligerence and violence is what the Court has as issues before it. That people may misbehave is the ugliness in the conduct of human affairs. But, the constitution seeks certain obligations from the State. Speaking of a State obligation to strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall form all aspects of national life, and these concepts are to be reserved not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. [article 38 of the Constitution of India]. The Constitution speaks of a State obligation which ensures and secures that the operation of the legal system promotes justice on the basis of equal opportunity. {article 39-A of the Constitution of India]. The Constitution speaks of a State endeavour to secure to its citizen a decent standard of life and full enjoyment of leisure and social and cultural opportunity. [article 43 of the Constitution of India]. 177. Of the obligations which the Constitution of India extracts from the State, it seeks a higher goal from the individual who forms the State. The Constitution imposes a fundamental duty on the citizen to uphold and protect the sovereignty, unity and integrity of India: [article 51-A (c) of the Constitution of India] of promotion of harmony and the spirit of common brotherhood and to renounce practices derogatory to the dignity of women, [article 51-A (e) of the Constitution of India] to value and preserve the rich heritage of our composite culture, [article 51-A (f) of the Constitution of India], the development of a scientific temper, humanism and the spirit of inquiry and reform; [article 51-A (h) of the Constitution of India] to abjure violence [article 51-A (i) of the Constitution of India] and in the ultimate of a civilised society to strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement. [article 51-A (i) of the Constitution of India]. 178. Are the standards of values and of life and civilisation between orgnaised people and individuals of nations and citizen any different? [article 51-A (i) of the Constitution of India]. 178. Are the standards of values and of life and civilisation between orgnaised people and individuals of nations and citizen any different? Are not obligations of the State as a collective effort a corollary to securing hitnan dignity and securiting those as human rights of a just social order? Until the enactment of the Human Rights Act, 1993, the subject was a matter of international concern when violations occurred within nations. Degrading human life, values and rights affected just and honourable relations between nations. This in turn has been known to be taken as disregard for international law and treaty obligations in the dealings of orgnised people with one another. Respect for international law and just and honourable relations between nations is an obligation set by the Constitution of India. [article 51 of the Constitution of India]. But what once was a subject of public internation al law, is today federal law. Principles of international law and a Code of conduct in the affairs of human relations and guaranteeing its value is the nations obligation by law. Could principles of international law in respecting human life and conduct be different in a civilised society? Savagry, carnage, destruction of life and property by agressors of people who are relegated to the vanquished finds an answer in in ternational law. Violence, call it war or by any other name, international conven tions adjust by reparation. The Constitution of India adopts an international Code of conduct. 179. What has happened in Uttar Pradesh during October 1994 is very disturb ing. It will hardly reflect upon the credibility of the State administration, if his torians looking into these incidents of human rights of people from the Uttarak hand region being violated, would discredit the administration of the times. Such comments have been made by historians and sociologists when human rights have been violated in the past. 180. If the Parliament by law sanctions the protection of human rights, would be remedies for its violation be adjudged by any different standards whether beligerence is in war between nations or between people within a nation? The value of and the values which make life in happiness, toil or tragedy are constituted of the same fabric in both cases. 181. Reparation is the answer to what? Its meaning needs to be understood. The value of and the values which make life in happiness, toil or tragedy are constituted of the same fabric in both cases. 181. Reparation is the answer to what? Its meaning needs to be understood. Oppenheim explains this concept as: The principal legal consequences of an inter national delinquency are reparation of the moral and material wrong done. [inter national Law a Teatise L. Oppenheim Volume I - Peace, Eighth Edition, Editted by H. Lanterpacht. English Language Book Society and Longmans, page 352]. Injuries which ocassion reparation are explained further. The violation of iternational law creates an obligation on the part of the delinquent to give satisfaction or reparation for the wrong to the State injured by violation. The violation may result in either a material injury or what may be called a moral injury. [cases and Materials on Inter national Law: Wolfgang G. Friedman, Oliver J. Lissitzyk and Richard Crawford Pugh All of Columbia University American Book series. P. 843]. Reparation or satisfaction for a moral injury may consist of a formal apology or a monetary pay ment or both. [ibid, Page 843] In international law it is accepted that the mere fact that a State is adjudged to have violated international law may be sufficient repara tion to the injury State. It is a known principle of international law that if the reparation for a moral injury consists of a monetary payment, the amount will depend on the nature and magnitude of the injury to the dignity or sovereignty of the wronged State. Further, when the moral injury is accompanied by or results from a material injury, the reparation often takes the form of a monetary payment measured by the damages of the individual claimant, even though, in theory, the injury has been suffered by the claimant State. [ibid page 844]. 182. In 1976, the official journal of the United Nations [un Chronicle, April 1976, Volume XII Number 4]. carried an article - "after 30 years, an International Bill of Human Rights". Certain passages from this article are relevant. These are : "the first international bill of human rights, a major undertaking which began at the inception of the organisation more than 30 years ago, is now in effect. It became effective with the coming into force on 23 March of the covenant on Civil and Political Rights. Certain passages from this article are relevant. These are : "the first international bill of human rights, a major undertaking which began at the inception of the organisation more than 30 years ago, is now in effect. It became effective with the coming into force on 23 March of the covenant on Civil and Political Rights. The other important covenant on human rights - the Covenant on Economic, Social and Cultural Rights - came into force on 3 January this year. Those two legally binding instruments, with the Universal Declaration of Human Rights on which they are based, as well as the Optional Protocol providing machinery for com plaints from individuals, constitute the bill of human rights. The covenant on Civil and Political Rights, which came into force on 23 March, 1976, ensures the right to life, liberty, security and privacy of person and the right to be protected from torture and other cruel, inhuman or degrading treatment. It prohibits slavery and forced labour and asserts among other rights; the right to freedom of express on, to freedom of movement, and to equality before the law. Several rights set out in the Covenant may be limited under specified conditions such as the necessity to protect national security and public order. However, certain rights, including the right to life and to protection against torture, may not be derogated from under any circumstances, even under a state of emergency. " 183. The article closes with the names of the countries which had ratified the two covenants. Indias name is not in that list. The emergency was on at that time and the basic rights which are fundamental in a democracy were put in a State of suspended animation. Twenty seven years after the Untied Nations adopted the two covenants, India, through its federal Parliament enacted the Protection of Human Rights Act, 1993. A concept of international law has been adopted and sanctioned as a law of the nation. Human rights, its breach and protection is a national con cern. Its respect a national obligation. Today can concepts of international law be treated as alien to the laws of the nation? The Constitution of India respects and recognises and on certain aspects, in context, particularly Human Rights an enact ment of Parliament refers to it. 184. Academicians tracing the origins of international law refer to the Dutch jurist Hugo Grotius. Its respect a national obligation. Today can concepts of international law be treated as alien to the laws of the nation? The Constitution of India respects and recognises and on certain aspects, in context, particularly Human Rights an enact ment of Parliament refers to it. 184. Academicians tracing the origins of international law refer to the Dutch jurist Hugo Grotius. His work: De Jure Belli ac Pads Libri III, published in 1625 is regarded as the foundation of all later development on this subject. Europe of those days was constituted of small duchies, principalities, fiefdoms besides a few nation States which continue today. The conduct of war or skirmishes, whether of beginning or end, was fraught with unstandardised conduct between sovereign States on the checker board of Europe. To end the war or discourage it, required sanction and deterrent. Barbaric conduct of marauders as victors extracted tool, fief or corvee from the vanquished. The development of international relations brought community of nations together to consider a planned equity to mitigate the loss in moral and material terms to those who suffered the violence and beligerence of the carnage and the savagery of war. India itself was the receipient of such repara tion during the Second World War. 185. After the Second World War at the Yalta conference in February 1945 it was agreed that Germany be required to compensate to the fullest extent possible to all damage caused to the nations who fought as allies. Later in December 1945 the allies at the Paris conference on Reparation agreed to their share of reparation. India received 2. 9% as equipment, plant and ships and 2. 00% other assets. Arthur Joseph Brown, M. A D. Phil, Professor of Economics, Unviersity of Leeds. [author of Applied Economics: Aspects of World Economy in War and Peace. Reference: Chambers Encyclopaedia, Volume XI, on Reparation]. 186. In the context of the cases before the High Court which ought to be the principles for mitigation, compensation or reparation, or both, of such organized misbehaviour against a class of people? 187. India is a land where even 45 years after being declared a Republic there is poverty amidst plenty. But is the value of life to be judged differentially by the Court? 187. India is a land where even 45 years after being declared a Republic there is poverty amidst plenty. But is the value of life to be judged differentially by the Court? If violence has become the routine of life, the value of life cannot be ac cepted by the Court as cheaply as it is permitted to be lost. When the violence is of individuals, the ordinary law of the land is available. But, of violence born out of politics and the indescretion of administration in politics, the hurt of injuries both moral and physical and of lives lost, cannot be accepted by the Court in mundane cheapness as lives are lost every day in every corner of the nation. The Court is not measuring life in a motor accident claim, with the yardstick of expectency of the victim and the heredity of his predecessors, nor his earning capacity as he would or could not provide for his family. The High Court in these matters before it, is not concerned with who did it. This answer is a long way off. But, the High Court, now, is prima facie satisfied that the injuries caused and the lives lost were the price paid in politics for dissent. Politics in India is moving away from health into a diseased state where the contest for power has made those in power loose their perspective. They are unable to accept the first cardinal principle of a stateman in politics: to agree to disagree. The other side of this proposition in politics is: power flows out of the barrel of a gun. The Constitution of India requires us to run a republicans republic, a democrats democracy, not a banana republic or a juntas regime where the politician, the bureaucrat and a gagged judge act like three men in a tub. 188. What concerns the court is that the violence on civil rights activists per petrated within the State of Uttar Pradesh was to scuttle a voice of dissent, claim ing only what the politics of two Governments promised. While each Government, central or state tried to outdo the other in showing how much sympathy it had for the people in the hills, when it came down to delivering the promise, the answer came differently. It came as gun shot, rape, and looking up or agitators including children. While each Government, central or state tried to outdo the other in showing how much sympathy it had for the people in the hills, when it came down to delivering the promise, the answer came differently. It came as gun shot, rape, and looking up or agitators including children. And what is the answer of the two Governments? One, the Central, says nothing, not a word to contribute in submission of these cases initially to the Supreme Court and subsequently by transfer to the High Court. The Central Government watches the proceedings. The State Government in Uttar Pradesh comes with two submissions. The officials in Administration contend in unision that they are unaware of the allegations of the petitioners as no one amongst them made any official complaint on record. The head of the Government, as Chief Minister submits, personally has nothing to do with whatever may have happened, as he, at no stage gave any instructions or orders for whatever is alleged. The subsequent Chief Minister when confronted with media reports that she was shielding from inquiry the officials responsible for the violence vicariously or otherwise, avoided contradicting the allegations, though given the opportunity to deny the reports. Such is the state of politics in administration of this State of Uttar Pradesh. Parallel to the investigation ordered by the High Court, the State Government, now that political Government has given way to Presidents Rule, carries on a Commission to investigate the same matters which are sub-judice and that also after one retired High Court Judge relinquished the Commission, to be substituted by another retired High Court Judge. Criminology does not permit an investigation in duality. This is the law. With these matters sub-judice what is the worth of the investigation by a commission? Could it affect a trial? It cannot except prejudice it. After the High Court and the Supreme Court have held that the investigation into the al leged crimes will be undertaken by the C. B. I. any other inquiry which runs parallel to an investigation, is otherwise, without the sanction of law. 189. Compensation to victims and trial of the guilty is the theme of these matters before the Court. The violence resulted in injuries, deaths, and molestation and rape of women. Punishment of the guilty who caused this violence is another consequential prayer in these cases. 190. 189. Compensation to victims and trial of the guilty is the theme of these matters before the Court. The violence resulted in injuries, deaths, and molestation and rape of women. Punishment of the guilty who caused this violence is another consequential prayer in these cases. 190. But, this alone will not render equity to the cause of the repressed in the eyes of reparative and retributive justice. A State administration which remained reticent when the cause was heard, but in the formality of its pleadigns denies the events of the tragedies, is like denying the carcass of the dead with vultures hover ing in the sky and of the atrocities on women in the presence of sodden petticoats, tattered blouses and teeth marks on bossoms. If the State as a political entity will not repair then the Court will. Reparation is not only a mitigating concept to secure repair of moral damage but also to heal the spiritual fabric of the society which suffers violence and loss and mutilation of its ethos. 191. Reservation provided in the equity clauses of the Constitution, as excep tions to rights guaranteed, is itself in the spirit of reparation to those who have suffered over the years or have been denied certain rights. Reservations in true spirit means repairing the inequality. The endeavour of the State to do so happens every day, every year in planning and executing planning. Even recently, the Central 1 Government allocated a sum of Rs. 1250 crores under the tribal sub-plans during the current eighth five year plan to 18 non-tribal majority States for the develop ment of the tribals living, there. The seventh five year allocation on the same sub ject was Rs. 756 crores. Madhya Pradesh received the highest amount of Rs. 326. 66 cores, Orissa received Rs. 164. 79 crores, Bihar received Rs. 155. 16 crores, Maharashtra received Rs. 99. 44 crores, Gujarat received Rs. 98. 26 crores, Andhra Pradesh received Rs. 73. 28 crores, West Bengal received Rs. 59. 71 crores. Three North Eastern States of Assam, Tripura and Manipur got a total of Rs. 92. 28 crores. The funds for such tribal sub plans come from a variety of sources-state plan, special central assistance and sectorial programmes of central ministries and departments besides institutional finance. These special grants under the tribal sub-plans are meant basically for family oriented income generation schemes. 92. 28 crores. The funds for such tribal sub plans come from a variety of sources-state plan, special central assistance and sectorial programmes of central ministries and departments besides institutional finance. These special grants under the tribal sub-plans are meant basically for family oriented income generation schemes. [united News of India, November 18,1995] 192. The conceptual identity of statehood to Kumaon and Garhwal and its people was promised by the State of Uttar Pradesh as a political promise within the Constitution. When formal statehood was sought, the answer came with bullets and carnage. The High Court, cannot grant the political relief of statehood, that is the matter of the Union and its territory as under Part I of the Constitution and is not a subject for Court or Courts-of-Record under the Constitution of India. 193. There is no issue that the violence complained of had not happened. Its existence is a fact. Who caused it only the trial by the Court competent to try will reveal. But, the nature of violence caused by each of the aggressors in their shades of culpability has yet to be identified. The victims who are alive suffer from memories of the carnage. The dead are mourned by the living. These are crimes, call them constitutional torts or violation of human rights. Violence of this nature is normally seen in war or initiates war. But, before the Court the question is: Is this War, and with whom? 194. Beligerence between small loosely bound nation States or duchies and kingdoms adjusted legal equities and called it under international law as reparation. What was the sanction of it? Mere understanding of a long standing set of conven tions. But reparation was understood materially to adjust the wrong done to the affected nations, to their economies as a consequence of the violence or war. Reparation as an equitable doctrine is much more than adjusting the spoils of war. Reparation means much more than understood as a post war doctrine for adjusting material wrongs. Reparation in the word of equity justice and good conscience is synoymous with making amends, of atonement, of compensation, of damages, of indeminity, of propitiation, of recompense, of redress, of repair, of equittal, of res titution, of satisfaction. 195. The principal legal consequences of an international delinquency is also reparation or atornement of moral wrong done. Reparation in the word of equity justice and good conscience is synoymous with making amends, of atonement, of compensation, of damages, of indeminity, of propitiation, of recompense, of redress, of repair, of equittal, of res titution, of satisfaction. 195. The principal legal consequences of an international delinquency is also reparation or atornement of moral wrong done. [international Law - A treatise : L. Openheim, Eight Edition, page 352]. But 2 between the period when these conenactment of the Protection of Human Right Act, 1993. The expression human rights" [section 2 (d)J has been described by definition to mean "the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in International Covenants and enforcable by Court in India" The word or is very significant. Beyond national legislation recognised concepts and covenants of international law have been adopted as sanction for consideration by courts in India. The border line between international law and national law has been narrowed to a fine line which in the matter of human rights transgressors international frontiers as a national concern by courts in India. Violation of human rights implies beligerence, a concern for which, until recently, lay by looking into "international Covenants" [section 2 (f) of the Act] has again been adopted for definition in the Act to mean "the International Covenant or Civil and Political Rights and the International Covenant on Economic, Social and Cultural Right adopted by the General Assembly of the United Nations on 16 December, 1966". 196. Facets of international law, human rights particularly, in reality are part of national law. The consequences to uphold it, is the sanction for the Courts. Reparation as restoring the balance upset by violence and beligerence was only an exercise mitigating the hurt of a nations equity with the only difference that this act of repairing - that is what reparation is - does not repair individuals but their ethos as a class. There is reparation for things, material and for moral indemnifica tion. Of the six million jews who suffered the holocaust of the Third Reich, in dividually, redress was impractical if not possible. But, the birth of the State of Isreal was seen as a moral answer to repair the fabric and the suffering of the Jews as a class. 197. There is reparation for things, material and for moral indemnifica tion. Of the six million jews who suffered the holocaust of the Third Reich, in dividually, redress was impractical if not possible. But, the birth of the State of Isreal was seen as a moral answer to repair the fabric and the suffering of the Jews as a class. 197. But, the logic of certain circumstances as the cause for the violence which was perpetuated and which the C. B. I. has reported does not reconcile with any circumstance nor reason. The resolutions of the Legislature of the State of Uttar Pradesh went beyond a politicians assurance and gave a guarantee of Statehood for the people of Kumaun and Garhwal. It was a civil, political, economic, social and cultural right already conferred on these people as a prelude to receiving Statehood. To mature this conferment the people of the hills decided to demonstrate before the Central Government. The effort to stop the demonstration was a cause of the violence. The details of the cause of the violence will yet need to be fathomed at the trials for the crimes which have already been perpetuated. The International Covenant on Economic, social and Cultural Riht are acknowledged by India as a protocol as a member of the world order, the Untied Nations. 198. Concepts of public international law on rights fundamental to man as a civic entity are adopted into the constitution to accept them as a national obliga tion and a special enactment safeguards the consideration of complaints on viola tion of human rights and execute remedies on sanction of High Courts, in addition to consideration by the latter. [protection of Human Rights Act, 1993]. Thus, address as remedies to those who have suffered cannot rule out concepts generally accepted under public 3 international law as good remedies by courts designated under the Constitution. Certain causes call for unusual remedies, as equity when it renders insaaf is not bound by shackels to deliver justice to the opporessed against constitutional torts, or call it by any other name, on violation of human rights or the rights of man. Repairing the damage: 199. Thus, as the record stands, the High Court holds the State administration of Uttar Pradesh, at the relevant time, responsible for the constitutional torts. Repairing the damage: 199. Thus, as the record stands, the High Court holds the State administration of Uttar Pradesh, at the relevant time, responsible for the constitutional torts. Human right were violated by the let and demur, deliberate or otherwise, and ab ject silence was shown by the administration on whatever was suffered by the civil rights activists from the hills in furthering a cause which State politics as a for mality had committed to them. Death by shooting, concealing the bodies of the dead, rape of women, molestation of them, and detention of women and children indeed against the provisions of the Constitution of India and the substantive and procedural law of the land debased the Rule of Law. No official agency of the State of Uttar Pradesh accepts the reality of the tragedies. The effort throughout the proceedings was to filibuster the proceedings on any pretext which could achieve the result. The means adopted to shake the Court from inquiring, within and out, would if it succeeds render the judicature system ineffective. 200. Let the international community not say that Indian Courts are abject spectators when constitutional torts are perpetuated in this nation. 201. What are the remedies for those who have suffered? Will this Court be in a position to heal the hurt of those women whose person was violated and of the parents who lost their progeny? The Court may not have a satisfactory answer to repair the wounds of the body and the mind, but in its humble innovation, shall attempt to repair by reparation the material and the spiritual wrongs of the class who suffered, as well as individuals. 202. Would it be inequitable that damages repair the violation of constitution al torts of the administrative hostility shown by the administration of the times? Dissenters are not for flogging and the majority cannot whip. These are symptoms of anarachy. It is not unknown that amongst the dissenters are the followers of the law, and those of the majority the breakers. 203. If reparation is to repair the insult, hurt, pain and the scars of the people of Kumaun and Garhwal, of the blows they received from the administration, the law takes recourse to heal and the doctrine has 4 precedents. Violations of constitu tional rights has invited exemplary damages in public law. 203. If reparation is to repair the insult, hurt, pain and the scars of the people of Kumaun and Garhwal, of the blows they received from the administration, the law takes recourse to heal and the doctrine has 4 precedents. Violations of constitu tional rights has invited exemplary damages in public law. The Supreme Court ex pects that in matters such as these the High Court is to forge new tools to deliver effective and equitable justice to the class of people whose political and constitu tional and basic rights are violated. In the matters before the High Court, most of them transferred from the Supreme Court, there must be a reasonable and modest nexus between the people and the reparation being considered for them. The first factor is the population, second the nature of its constituents and third the hurt where it hurts most. On the first factor, the population of Kumaun and Garhwal is 5,926,146. [1991 Census : Kumaun 2,943, 199, Garhwal 2,982,947 and Kaushik Committee Report, 1994, Part I, Page 3]. On the second factor, a money order economy leaves men earning away from homes and repatriating part of the incomes to their dependents at the hills. The women shoulder the burden of economic ac tivities besides the household chores. 1. Kaushik Committee Report, Annexure VI, page 234 - National Police for Integrated Development in the Himalayas, Report of the Expert Group, Planning Commission, Government of India, New Delhi. The third factor is directly related with these cases as no yardstick can measure the grief of the families for those who died in the violence of the agitations. And of those who live with scarred memories, the molested and raped women do not want to tell their tale. In reparation, thus, let the woman be in mind. A rupee a month representing one person for a plan period would be a very modest reparation, if not one in humility. In a government of the people and for the people where people are represented by the sanction of the Constitution both before the State and federal Legislatures when the people of Uttarkhand sought to enforce as Civil rights activist what their Legislature had resolved for them, then the cause was of a class. The reparation for constitutional wrongs would need to be shared between the State of Uttar Pradesh and the Union of India. The reparation for constitutional wrongs would need to be shared between the State of Uttar Pradesh and the Union of India. Of every rupee representing a person of the population of approximately 6,000,000 in Uttarakhand, let the State of Uttar Pradesh share fifty paise and the Union of India the other fifty paise every month over a plan period of five years. 204. This special allocation would need to be marked specially for the woman in keeping with all that has happened and repair in the spirit of the Constitution of India as a Fundamental Duty to promote harmony and the spirit of common brotherhood transcending religious linguistic and regional or sectional diversities to renounce practices derogatory to the dignity of women. [part IV A, Fundamental Duties, Article 514 (e), Constitution of India]. 205. It is the impression of the Court that the C. B. I. did not push itself to investigate what it had been ordered and confined itself to work within the confines of a reduced format despite the fact that this Court declined to reduce the scope and the format "of the inquiry. In the first two reports, the C. B. I. , reflected on the callous indifference of the heads of the administration or divisions concerned ; of the tampering with records and hiding the truth which in itself is a crime against public justice ; of the exercise to camouflage tragedies and of collusions, con spiracies, falsehood to tamper with evidence and the abetment with such activities. "the official version pleads ignorance of the events in issue for lack of information formally not reported to the administration. 5 206. Why did the C. B. I. , not process the filing of charge sheets against all the those who find mention in its report, without fear or favour, irrespective of official status or rank? Applying to the State Government for sanction for prosecution of the involved officials was a calculated exercise to engineer complications in the normal judicial process not to put on trial all who were revealed, during the course of investigations, to have erred by participation in crimes which was no part of official duties. Applying to the State Government for sanction for prosecution of the involved officials was a calculated exercise to engineer complications in the normal judicial process not to put on trial all who were revealed, during the course of investigations, to have erred by participation in crimes which was no part of official duties. Seeking sanction of a Government embarassed awed and com promised by the same officials who face allegation on crimes against humanity and of constitutional wrongs, was only a calculated signal to the same officials to fur ther bog and frustrate the exercise of a prelude to trial, by losing time and with it the evidence. 207. These officials who should have faced charge sheets on the prima facie circumstances investigated by the C. B. I. , having been heard as arrayed respondents before the High Court in this. Court on the petitions being transferred from the Supreme Court, become petitioners before the Lucknow Bench of the Allahabad High Court, [cbi Reports No. 6749/uk/sr/cbi SIC IV New Delhi, dated 30-11-1995, paragraph 2 No 7047/uk/sr/cbi SIC IV New Delhi, dated 14- 12-1995, paragraph 2, No. 7452/uk/sr/cbi SIC IV New Delhi, dated 29-12-1995, paragraph 2. No. 1951/uk/sr/cbi SIC IV New Delhi, dated 12-1- 1996, paragraph 2 No. 497/uk/sr/cbi SIC IV New Delhi, dated 31-1-1996, paragraph 2]. 208. At Lucknow, the respondents here but petitioners there, challenge the sanction to prosecute them and the consequential charge-sheets to put them to trial. The C. B. I. mentions of the writ petition filed at the Lucknow Bench in its reports of 30 November, 1995 and thereafter. ! Ibid. ] The C. B. I. , does not provide the details of the record, though the media has already reported that the State officials, who are respondents before this Court, instituted case before the Lucknow Bench. The challenge these officials made, at Lucknow to sanction to prosecute them or to bring charges to put them on trial was an exercise on which these offi cials addressed this Court, even by written submissions. [written submission dated 4 May 1995, filed by counsel for Respondent No. 4, the District Magistrate, Muzaffarnagar and Respondent No. 5, Superintendent of Police, Muzaffarnagar, reference order sheet dated 4 May 1995]. Of the immunity which the Court would not grant them even after the written submissions, one of the senior counsel staged a walk out to withdraw from the proceedings. Of the immunity which the Court would not grant them even after the written submissions, one of the senior counsel staged a walk out to withdraw from the proceedings. Clearly, the immunity pleaded, this Court thought was premature to consider with a C. B. I. , investigation in progress. If this Court were in error, this Courts lack of activity on this aspect could have been impugned, like the order to investigate through the C. B. I. , had been, at the Supreme Court. Instead, the State officials filed a writ petition at Lucknow. Could they? Their submission in totality were subjudice where? 209. While the judgment was reserved, counsel for the petitioners Messrs M. M. Ghildiyal and Sudhanshu Dhulia, Advocate, filed in Court a copy of the writ petition at Lucknow of which the C. B. I. , has 6 mentioned in its five reports filed as of date. The C. B. I. is a party respondent No 2 in aforesaid the Writ Petition No. 3463 of 1995 : Sri S. M. Nasim and others v. State of U. P. and others, pending at Lucknow. The State of Uttar Pradesh is Respondent No 1. The petitioners are : (1) S. M. Nasim, Director, Police Tele-Communication, U. P. , Lucknow; (2) Bua Singh, In spector General of Police (Law & Order), U. P. , Lucknow ; and (3) Mahesh Kumar Misra, Deputy Commandant, 43 Bn. , P. A. C. Etah. The petitioners at Lucknow are respondents in this Court in Writ Petition No. 39920 of 1994 - Uttarakhand Jan Morcha v. Union of India and others. This writ petition came by transfer from the Supreme Court to the High Court at Allahabad. 210. These petitioners at the Lucknow Bench, respondents before this Court have filed their defence individually as a counter affidavit in the matters before this Court. Before the Lucknow Bench, now that the record is before this Court, in paragraph 21 they refer to the Special Leave Petition which was filed by the State of Uttar Pradesh against the order of this Court of 7 October, 1994, one by which the C. B. I. , had been required to investigate the aspect of tragedies and human rights violations. The petitioners at Lucknow also refer to the Writ Petitions No. 322, 323 and 324 of 1994 filed at the Supreme court. According to these petitioners at Luck-now, ". . The petitioners at Lucknow also refer to the Writ Petitions No. 322, 323 and 324 of 1994 filed at the Supreme court. According to these petitioners at Luck-now, ". . . . . . . the Govt. of U. P. in unequivocal terms and justified the acts and actions of the petitioners in regards to the incident above referred allegedly taken place at Rampur Tiraha (Muzaffarnagar)". 211. In paragraph 22 of their writ petition at Lucknow, the three officials ac knowledge that "the whole matter was sub-judice and under consideration of the Honble High Court. " This submission is repeated in paragraph 40 when these offi cials again submit that "the sanctioning authority further ignored that the whole matter is still sub-judice with the Honble High Court. " In the grounds and objec tion the officials in their petition reiterated that the matters in issue as a whole are sub-judice in the Honble High Court. This is mentioned in ground g before the Prayer. 212. If the petitioners themselves were conscious of the fact that the issues on which they approached the Lucknow Bench, were sub-judice, the first question arises where exactly were their matter was sub- judice? Consequently, of any ir regularity which they suggest in the sanction which has been accorded to the C. B. I. to prosecute them or of filing of charge-sheets by the C. B. I. , truly was a matter which they should have sought redress before the Court where they had already submitted aid according to their comprehensions, also, the matter was sub-judice. Not only this, the petitioners are aware of the cases which were pending at the Supreme Court. Were these not be cases which became writ petitions after the record was transferred by the Supreme Court? 7 213. A further perusal of the record of writ petition pending before the Luck-now Bench and filed by the three petitioners and paragraph 9 of their rejoinder affidavit in reply to the preliminary counter affidavit filed by the State of U. P. ob jecting to the maintainability of the three writ petitions, submit that "it is also relevant to submit here that the Honble High Court after taking the C. B. I. s reports on record and after hearing the submissions of the parties concerned has reserved the judgment. The judgment is yet to be pronounced. The hearing has been completed. The judgment is yet to be pronounced. The hearing has been completed. " This shows that the petitioners before the Lucknow Bench are not unaware where their matter was sub-judice, heard and record awaiting judg ment and/or Orders. 214. The State of Uttar Pradesh in its counter affidavit saw submissions by the Special Secretary in the Department of Home, Government of Uttar Pradesh. It must be fairly said that in the grounds of objections to the writ petition the Special Secretary submitted before the Lucknow Bench of the manner in which the petitioners moved the Court of the short notice which were given to the Govern ment. In the preliminary counter affidavit, the Special Secretary submits and ob jects to the jurisdiction of the Lucknow Bench on hearing the specific matters on which the three police officers had filed the writ petition at Lucknow Bench. The objection is taken in paragraph 8 of the preliminary counter affidavit. In paragraph 9, the Special Secretary places on record that three petitioners - Messrs S. M. Nasim, Bua Singh and Mahesh Kumar - otherwise public servants, are also respon dents in various writ petitions pending at the High Court at Allahabad and some of them had been transferred by the Supreme Court to the Allahabad High Court and on these cases the record stands reserved for judgment. 215. In Paragraph 10 of the preliminary counter affidavit reference to the events which have taken place on which the enquiries were ordered and matters being sub-judice before the Supreme Court and on transfer before the High Court at Allahabad of the officers impleaded in the writ petitions as respondents, includ ing the petitioners at Lucknow Bench, and that these officers filed their affidavits and appeared through Advocates in the petitions pending at Allahabad, has been mentioned. In paragraph 15 of the preliminary counter affidavit of the special Secretary, a question of jurisdiction has been raised of the propriety of petitions being filed at the Lucknow Bench by the three petitioners before it, of matters where the cause of action did not arise in any location in which the Lucknow Bench may have jurisdiction and of the reservations the State of Uttar Pradesh has in the three petitioners approaching the Lucknow Bench of the High Court when their matters are clearly sub-judice before the High Court at Allahabad. 216. 216. All that this court can say is that this is a cardinal principle of jurisdiction that insofar as Superior Courts of Record are concerned, they have the prerogative to determine their jurisdiction on settled principles. But, insofar as the petitioners are concerned, they were fully conscious of where they were party respondents and of the causes and matters which were sub-judice and on issues which they were 8 heard and of the matters and dockets and the record, including those transferred by the Supreme Court, on which the orders and judgments stand reserved. 217. Were not matters of inquiries, investigations, the aspect of sanction to prosecute or the filing of charge-sheets sub-judice in these matters ? Could these very respondents offer their defence before this Court and when the law took its course, consequent to their actions which were subject matters of these writ peti tions, of the reliefs sought in these cases, impugn the consequences visiting them in another court? Were filing of charge-sheets against them not consequential to in vestigations ordered by this Court through the C. B. I. ? Were these respondents not respondents before the Supreme Court and the same cases transferred by the Supreme Court to this Court, at Allahabad? The respondents before this Court, who became petitioners before the Lucknow Bench abused the process of the Court in their attempt to prejudice the trial of these matters transferred by the Supreme Court here, at Allahabad. The cause of action against these respondents, who became petitioners before the High Court at Lucknow, whether they yet may or already face charge sheets, arose from whatever is alleged against them of their let by demur or otherwise of the abetment or conspiracies of crimes which were occasioned on the civil rights activists who complain of constitutional torts. These petitions had been pending consideration and sub-judice at Allahabad. 218. No part of this happened within the jurisdiction of the Lucknow Bench of the Allahabad High Court. Merely because the seat of Government of administration by the secretariat is at Lucknow will not invest a jurisdiction at the Lucknow Bench. Otherwise, a Superior Court of Record has unlimited inherent jurisdiction, but the matter is one of proprieties. The cause must happen there not the result? Merely because the seat of Government of administration by the secretariat is at Lucknow will not invest a jurisdiction at the Lucknow Bench. Otherwise, a Superior Court of Record has unlimited inherent jurisdiction, but the matter is one of proprieties. The cause must happen there not the result? Seeking of sanction for prosecution, or the granting of it by the State Government, was a misplaced exercise by the C. B. I. The cause of action will be determined by the place of crimes. Of actions from Mussoorie to Nainital and Muzaffarnagar, to Khatima, the cause to petition, was before the jurisdiction of the High Court at Allahabad, not the Lucknow Bench. The officials who were respondents before this Court and became petitioners at Lucknow knew where the matters relating to them were sub-judice and of the offences that are alleged against them and of the causes and issues which are sub-judice before the High Court and rightly reserved where they are, by transfer from the Supreme Court. Of criminal eases and matters arising out of them at the High Court, the Supreme Court in the matter of conflict of jurisdictions at Allahabad and Lucknow, in context, in re : Nasiruddin v. S. T. A. Tribunal, AIR 1976 SC 331 , observed: "a criminal case arises where the offence has been committed or otherwise as provided in the Criminal Procedure Code". 219. The best of the reports of the C. B. I. were the first two reports. In these reports, details of the tragedies which had been committed, are meticulously recorded. Thereafter, reports submitted by the C. B. I. are mundane, of resting on a leisurely investigation and are a mere formality of submitting as an investigation had been directed by the High Court, which order was not interfered by the Supreme 9 Court. The C. B. I. , thus, had no option but to investigate. But, the inves tigation by the C. B. I. was stretched more than was necessary as it did not reach the people at the places from where they came. The investigation was stretched and some aspects yet were left uninquired. Time was also stretched in filing the charge sheets against whom ever the investigation showed prima facie allegations. Un necessarily, the C. B. I. wasted time in seeking sanction of the State Government when clearly the sanction was not even required. The investigation was stretched and some aspects yet were left uninquired. Time was also stretched in filing the charge sheets against whom ever the investigation showed prima facie allegations. Un necessarily, the C. B. I. wasted time in seeking sanction of the State Government when clearly the sanction was not even required. It is a settled law that should there be an occasion to seek sanction on a prosecution, the Court where the charge sheet would lie, would examine the matter first. The comments of this Court can not be more than what the Supreme Court has commented recently in re: Vineet Narain v. Union of India, what is now popularly known as the hawala matter. 220. With regard to matters of investigation and the independence of the investigating agency, it is on record that a former Judge of the Supreme Court as Chairman of the Gandhi Murder Enquiry Committee, considered the legal position of the investigating agency and the Government and its scope for interference. [frontline, February 9, 1996, page 15. The Honble Mr. Justice J. L. Kapoor, former Judge of the Supreme Court, Chairman of the Committee, observed- "in the opinion of the Commission, although Home Minister is incharge of the police and police administration and is answerable to Parliament about it, still he has no power to direct the police how they should exercise their statutory powers, duties or discretion. Both under the Criminal Procedure Code and under the Bombay City Police Act, the statutory duty of the police is both to prevent crime and bring criminals to justice. Therefore, the Minister can and could only pass on the informa tion of the commission of an offence to the police to investigate, so also in regard to the threats of the commission of an offence. If the Minister were to give orders about arrests, to arrest or not to arrest, that would be an end of the rule of law. " 221. It is reported that the Chairman of the Committee pointed out that "governments Administrative control" of the police and constitutional account ability, accordingly, to the Legislature does not entitled it to interfere. The Com mittee is quoted to be on record to say : "the distinction between administrative supervision and direct interference begins with statutory powers, a well recognised principle of the rule of law. " 222. The Com mittee is quoted to be on record to say : "the distinction between administrative supervision and direct interference begins with statutory powers, a well recognised principle of the rule of law. " 222. Yet crime, and the commission of an offence and abetment may go hand in hand and picking out the offender is not the function of the High Court in these proceedings as the trial will tell on that on these principle of beyond a reasonable doubt. But, let no offender escape from being tried also, and that is the function of these proceedings. To the investigation agencies, in the matters before the Court, the C. B. I. , and the courts of trial, the recent observation of the Supreme Court on the theme of public justice 0 has been : "be you ever so high the law is above you. " The Supreme Court in re Vineet Narain [text of the order of the Supreme Court re: Vineet Narain and others v. Union of India, published in Times of India, New Delhi, 31-1-96] observed : "it is of utmost public importance that this matter is examined thoroughly by this court, to ensure that all Government agencies entrusted with the duty to discharge their functions and obligations in accordance within law, do so, bearing in mind constantly, the concept of equality enshrined in the Constitution and the basic tenet of rule of law : "be you ever so high the law is above you. " Investigation into every accusation made against each and every person on a reasonable basis, irrespective of the position and status of that person, must be conducted and completed expeditiously. This is imperative to retain public confidence in the impartial working of the Government agencies. In this proceeding we are not concerned with the merits of the accusations or the individuals alleged to be involved. But only with the performance of the legal duties by the Government agencies. In case of persons against whom a prima facie case is made out and a charge-sheet is filed in the competent court, it is that court which will then deal with that case on merits, in accordance with the law. But only with the performance of the legal duties by the Government agencies. In case of persons against whom a prima facie case is made out and a charge-sheet is filed in the competent court, it is that court which will then deal with that case on merits, in accordance with the law. However, if, in respect of any such person, the final report after full investigation is that no prima facie case is made out to proceed further, so that the case may be closed against him, that report must be promptly submitted to this court for its satisfaction that the concerned authorities have not failed to perform their legal obligations and have reasonably come to such conclusion. No such report having been submitted by the CBI or any other agency till now in this court, action on such a report by this court would be considered, if and when that occasion arises. We also direct that no settlement should be arrived at nor any offence compounded by any authority without prior leave of this court. " 223. This Court of the cases which were brought in the writ petitions, is satis fied and certifies that 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 constitu tional torts. Only for demonstrating for fulfilment of the promise formalised by the Legislature of the Uttar Pradesh and under discussion with the Union Government that the people of Kumaun and Garhwal should received statehood the civil rights activists had to suffer that seemed like a direct attack by functionaries of the Government aimed at them as a class. The citizens of these regions who have al ready been identified as a case of identity by the Legislature of the State, whether they 1 agitated for statehood guaranteed to them or they opposed reservation in their regions, these are not the issues in these matters before this Court. But, the Con stitution of India does permit consideration of such claims and aspirations. These are civic rights. But, the Con stitution of India does permit consideration of such claims and aspirations. These are civic rights. But when these issues in citizens seeking their legitimate claims is resisted with violence and the result precipitates and settles as killings, injuries, molestation and rape of women, detentions and of citizens disappearing and given up as dead, and the State agencies attempt to deny the events, litigation bring forth issues before the Courts. The world will judge these incidents, as the Court has certified them, human rights violations. While this Court cannot make good the promise that was the root of their agitation, as it is beyond the confines of this Court, under the Constitution, but, it has anxiously deliberated on what relief it could deliver to the people who have, personally and as a class, suffered human rights violations and constitutional wrongs. A. B. Srivastava. J.- Having had the advantage of going through the opinion prepared by my esteemed brother, Honble Ravi S. Dhavan, J. , at various stages of preparation whereof, there had been exchange of views between us, and with which opinion I am in full agreement in the nature of the cause herein, and considering the far- reaching implications of the questions relating to human rights and its al leged violation at the hands of State agency, arising in these public interest petitions, it would be in the fitness of things to express briefly on certain aspects of the matter. 225. These petitions which complain of a series of horrendous incidents of human rights violation in the hill regions of Uttar Pradesh and its periphery, in the months of September-October, 1994 seek amongst others the following reliefs: (a) a writ of mandamus commanding the State of Uttar Pradesh to appoint a Com mission of a sitting Judge of Allahabad High Court or appoint an independent agency like Central Bureau of Investigation, to enquire into the incidents of Dehradun, Mussoorie, Khatima and Muzaffarnagar etc. ; (b) a writ of certiorari quashing the appointment of Shri Justice Rajeshwar Singh (Retired) as Commissioner for enquiry ; (c) a writ directing thj respondents to trace and restore the missing people ; 2 (d) award compensation to the affected people for injuries, deaths, illegal detentions, harassment, rape and molestation of women, and violation of their human rights by public authorities; (e) a writ directing the concerned authorities to register cases of rioting, dacoity, kill ing, rape and molestation of women and illegal detentions of innocent people against erring officials and punish and suspend those responsible for mass killings, rape etc. ; (f) a writ directing the State of U. P. to re -consider the reservation policy in the light of judgment of the Supreme Court in State of V. R v. Pradeep Tandon ; (g) a writ of habeas corpus against the State respondents calling them to produce the persons, named Charmanand Bhatt, Gopi Chand, Paramjit and Ram Pal Missing and those illegally detained since the incident at Khatima or to furnish their whereabouts ; (h) a writ of mandamus commanding the State of U. P. to constitute a State Human Rights Commission under the Protection of Human Rights Act. Of these, the aspect relating to reservation in educational institutions in Kumaon and Garhwal, was subject matter also of a separate Writ Petition No. 29843 of 1994 - Manvendra Shah v. State of Uttar Pradesh 1995 (2) LBESR 147 (All) before this Court. The same was decided on 31st May, 1995, quashing the notifications in this regard. 226. The genesis of this entire episode is traceable to the demand of the people of Kumaon and Garhwal for a separate State, as contemplated in Article 3 of the Constitution of India, which runs as follows : "3. The same was decided on 31st May, 1995, quashing the notifications in this regard. 226. The genesis of this entire episode is traceable to the demand of the people of Kumaon and Garhwal for a separate State, as contemplated in Article 3 of the Constitution of India, which runs as follows : "3. Formation of new States and alteration of areas, boundaries or names of existing States : Parliament may by law - 3 (a) form a new State by separation of territory from any State of by uniting two or more States or parts of States or by uniting any territory to a part of any State ; (b) increase the area of any State ; (c) diminish the area of any State ; (d) alter the boundaries of any State ; (e) alter the name of any State : Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States. . . . . . , the bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the refer ence or within such further period as the President may allow and the period so specified or allowed has expired. " 227. In the instant case although the steps, and the procedure, required under the proviso to Article 3 aforesaid, were not adhered to, yet at the behest of the two successive Governments, both the Houses of the State Legislature unanimously passed resolutions recommending to the Central Government the creation of a State known as Uttaranchal. This exercise was preceded by an examination of the claim of Statehood, by a committee known as Kaushik Committee, headed by a cabinet Minister in Government of Uttar Pradesh. No follow up action, however, appears to have been initiated by the President or the Central Government in ac cordance with the procedure prescribed under Part I of the Constitution. 228. This exercise was preceded by an examination of the claim of Statehood, by a committee known as Kaushik Committee, headed by a cabinet Minister in Government of Uttar Pradesh. No follow up action, however, appears to have been initiated by the President or the Central Government in ac cordance with the procedure prescribed under Part I of the Constitution. 228. In the above situation, what added fuel to the fire, and provided an imme diate cause for the mass movement in the regious aforesaid, was the announcement of 27% reservation of seats in all educational institutions in the said area, as in the plains, despite the required facts and criteria being non-existent. That it was so done without any survey, and in teeth of the categorical observations in Pradeep Tandon s case AIR 1975 SC 563 , for a non-existent class of people, led to an ap prehension in the minds of the people there, that it will lead to a shift of popula tion from the plains to the hills. And when the people of the area protested, it resulted into a series of violent incidents, including firing by 4 the police and para military forces, on the crowds of agitationists, as well as others at various places, resulting into loss of as many as twenty-four lives, including a young Deputy Super intendent of Police and a Fire Brigade driver, injuries to many, and detention and incarceration of a large number of persons, as well as mass scale molestation, and rape of woman, and deprivation of valuables and personal effects, at the hands of the members of these forces. One such person is stated to be still unaccounted for. 229. While incidents of major dimensions were stated to have occurred at Khatima in district Nainital on 1-9-1994, Mussoorie in district Dehradun on 2-9-1994, Narsen in district Haridwar, and Rampur-Tiraha in the district of Muzaffarnagar, on 1st and 2nd October, 1994, incidents involving deaths, injuries and loss of property were also alleged to have occurred in Dalanwala and Doiwala in the dis trict of Dehradun, Tallital in district Nainital, Gauchar in district Chamoli, at Pauri and Kotdwar. The various petitions gave graphic details of the petitioners version regarding these incidents. The various petitions gave graphic details of the petitioners version regarding these incidents. The media also flashed its own reports nation-wise but in the absence of any prompt response from the State authorities, and the accusation being against the State machinery itself, in order to have an objective assessment of what may have happened, this Court by its order dated 7-10-1994 called upon the Central Bureau of Investigation, by a writ of mandamus to investigate on the inci dents which may have happened in the regions of Garhwal and Kumaon between 17 June, 1994 and until the investigation is determined, and report its findings to the High Court, besides submitting on conclusion of the investigations, the statutory reports under the Code of Criminal Procedure to the Courts competent to take cognizance under Section 190 of the Code of Criminal Procedure. The status so conferred upon the C. B. I. thus, besides the only investigative agency, was also of a Commissioner of the Court, for the purposes of determining the truth, or otherwise, of the allegations of gross violation of human rights and indiscriminate use of strong arm methods against the participants in the civil rights movement as well as others. 230. The C. B. I. , which took up the task rather reluctantly, on getting to the job gave its first three reports, mostly about the aspects of the incident at Rampur - Tiraha and its periphery, with some details, but subsequently the pace of enquiry considerably slowed down and the reports submitted became sketchier, till the Court reminded it of the necessity of the reports being communicative, to enable the Court, and for that matter the parties, to get apprised of its prima facie findings about the incidents in its various aspects. 231. What emerges prima facie established, on a consideration of the pleadings exchanged between the parties, the reports 20 in number of the C. B. I. , copies of which were duly supplied to the learned counsel for the petitioners, State of U. P. and the respondent officials, copy of the report dated 16-11-1994 of the National Commission for Women, submitted to the Government of India, and upon hearing at length learned counsel for both the sides, is to the following effect : 5 Re : Khatima : 232. Felt aggrieved by reservation of 27% seats in the educational institutions for the O. B. Cs. Felt aggrieved by reservation of 27% seats in the educational institutions for the O. B. Cs. , which population in the hill region does not exceed two to three per cent, the people, particularly the students, of the area started protesting for withdrawal of the same. In the week immediately preceding 1st September, 1994, the police made house to house search, picked up and detained 95 students within Khatima Tehsil and sent them to far flung jails. When the local newspapers pub lished the photographs of these students alleging police brutality, the people of Khatima and nearby places, decided to demonstrate and to submit a memorandum to the authorities in this regard. 233. On 1-9-1994 in the presence of district authorities, between 10-11 a. m. when the peaceful procession comprising of about ten to fifteen thousand persons passed from in front of Police Station Khatima, shouting anti-police and anti-Government slogans, the police without any provocation, taking orders of Sub-Divisional Magistrate, resorted to indiscriminate firing in and around the police station, as also the Tehsil campus, leaving several dead and injured, it being a pen sion day, many of them retired army personnel, S. L. R. , stengun and other sophisti cated weapons are also alleged to have been used in the firing. While the police recorded and acknowledged only three persons Bhagwan Singh Sirola, Pratap Singh and Salim as having been killed in the police firing. It was contended by the petitioners that four more persons, viz. , Dharman and Bhatt, Gopi Chand, Paramjit Singh and Ram Pal, who were also seriously injured in police firing, were bodily lifted away by the police led by the Station House Officer of Police Station Khatima, and have not been traced dead or alive since then. Although the police and State respondents initially denied the allegations of these persons having been taken away dead or injured, and went on to suggest that some of them might have been eaten away by wild animals, subsequently as a result of a C. I. D. enquiry conducted at the behest of then Advocate General, Shri S. P. Gupta, it was admitted that these persons are no longer alive and in all probability died as a result of police firing. 234. 234. The C. B. I. , has also reported that investigation has revealed material to suggest prima facie that S/shri Dharamanand Bhatt, Gopi Chand, Paramjit Singh and Ram Pal were also killed in the police firing outside the premises of P. S. Kotwali Khatima, whereas S. D. M. had ordered firing in the premises of P. S. Kotwali Khatima only, and their bodies were disposed of by the authorities surrep titiously at the behest of some police officers and others, without intimation to their families or recording the same in the police records. Further the deadbodies of three persons Bhagwan Singh Sirola, Pratap Singh and Salim admitted by the State respondents to be killed in the police firing, whose autopsy was conducted at Pilibhit, were not handed over to their kith and kin, rather were disposed of at a place called Majhola, between Pilibhit and Khatima. 6 235. According to the C. B. I. , twenty eight persons as mentioned at page 6 of its VII Status Report received injures at the hands of the police, six of the them by fire-arms and the rest by blunt objects. Forty-five persons were arrested by the police on 1-9- 1994 and instead of being lodged in the Haldwani district jail in the district of Nainital, were sent to District Jail, Varanasi, from where twenty-three of them were released on bail on 23-9-1994. 236. The C. B. I. , has sought assistance of the C. F. S. L. , New Delhi who have, taken samples of bullet pieces, blood stains and firing marks on the walls. A breakthrough is imminent and the Investigating Officer, according to the C. B. I. , Ill file his report under Section 173, Cr. P. C. regarding Khatima incidents, at the ear liest, on prima fade case being made out against concerned public servants. Re : Mussoorie : 237. According to the petitioners version, under the auspice of the Uttarakhand Sangharsh Samiti, the local people of Mussoorie, like the people of other segments of the hill regions of the State, were agitating in support of movement for Uttarakhand and against the policy of reservations in the educational institutions in the hills. They had their improvised office at the Jhoplaghar which is called Ropeway restaurant from where their activities were coordinated. 238. They had their improvised office at the Jhoplaghar which is called Ropeway restaurant from where their activities were coordinated. 238. On 31st August, 1994, the meeting of sub-committee of the Samiti consisting of some leading citizens of the town, was called at Jhoolaghar to consider the steps to support band call given at Pauri in support of their demands. On enquiry by the District Magistrate, Dehradun, a joint report was submitted by the A. D. M. (F), S. D. M. and then S. H. O. , Mussoorie, that there was no need for extra police force in view of the peaceful nature of the people of Mussoorie. The ad ministration which, however, was vindictive, on 1-9-1994 replaced the State House Officer and heavy deployment of P. AC, and police was made at Mussoorie. 239. The arrest and removal of five activists in the morning of 2-9-1994 from the local Samiti office by the newly posted S. O. , Mussoorie, seizure of leaflets, other articles and donation box, and forcible eviction from the office led to further demonstration, and arrest of forty-three persons. As a measure of protest two processions consisting of women, children and persons of all ages, one from Landhour and other from the Library point, led by some respectable ladies and others, started at 9 a. m. and reached Jhoolaghar. While they were protesting against forcibly eviction from the building and tried to pay 7 homage to the martyrs at Khatima, stones were pelted from a hillock by P. A. C. people in civilian dress. In order to seek protection some of the ladies and children went inside the Samiti Office which was formerly a restaurant. At Jhoolaghar were present Circle Officer Umakant Tripathi with some P. A. C. and police Constables. While the Circle Officer told that he had no objection to hand over the possession of the rooms to Samiti, the Station Officer was adamant to crush the movement. Suddenly the P. A. C. and the police canstables, who had formed a chain outside the building, turned around and started shooting without any orders from S. D. M. or any provocation from the agitationists. 240. From a distance of about 5 ft. they sprayed bullets on two ladies Hansa Devi and Balmati Chauhan, who died instantaneously, their heads shattered. The bullets also hit Raj Singh Bangari, Dhanpat and Madan Mohan Mumgain who also died. 240. From a distance of about 5 ft. they sprayed bullets on two ladies Hansa Devi and Balmati Chauhan, who died instantaneously, their heads shattered. The bullets also hit Raj Singh Bangari, Dhanpat and Madan Mohan Mumgain who also died. A Constable named Jagmohan Singh Rawat killed one Balbir by piercing a bayonet. Rajendra Singh, an Advocate, was shot in the chest and critically injured. Lathi charge was also made. When Circle Officer Umakant Tripathi shouted at his men not to shoot, they shot at him by their. 303 rifle and he was injured. Before dying the young Circle Officer stated before some persons present there, that his own men have killed him. As many as 47 persons including the ex-Chairman of City Board and ex-D. I. G. were arrested without any warrant or authority of law, they were not produced before any Magistrate and were not given food or water and were made to stand all along. At 3 a. m. in the morning they were taken to Bareilly in a bus and were beaten and let off at 5 p. m. on 2-9-94 without any food or water. 241. The counter version in the F. I. R. under Sections 147, 148, 149, 353, 332, 339, 436, 307, 395, 504, I. P. C. , 3/4 P. P. D. Act and 7 of Criminal Law Amendment Act lodged by the S. O. , PS. Mussoorie and adopted in the charge-sheet submitted against fourteen persons from amongst agitationists by the local police, it was al leged that the agitationists had occupied the hall of the municipality and locked the office of S. D. M. On 30-8-1994, the administration made an attempt to unlock the said office. Meanwhile there reached the news of police firing and deaths in Khatima on 1-9-1994. The crowd of the agitationists which assembled at Jhoolaghar on 2-9-94 protesting against arrest of some of the agitationists earlier and the inci dent of Khatima, indulged in stone throwing, causing injuries to a number of people including police officials and did not disperse despite the assembly being declared unlawful, use of tear gas and lathi charge, and looted arms and ammuni tions which led to police firing on the orders of S. D. M. , resulting into death of aforesaid six persons and injuries to a number of other persons named by petitio ners. The Circle Officer Umakant Tripathi who was also injured in the incident went with other injured persons to St. Marys Hospital in the same ambulance for treatment. There some persons from the crowd including nine of the named ac cused persons dragged him from the hospital and assaulted by kicks, lathis, stones, brickbats, khukari and fire-arms, resulting into his death on the road outside the hospital. Forty-eight public men and twenty-three police persons received blunt ob ject injuries, thirty-one public men recieved firearm injuries in this incident. 8 242. After cognizance on the charge-sheet was taken by the Magistrate; in pur suance of the order dated 12-1-1995 of this Court, the C. B. I. claims to have re-in vestigated the matter and in its typical sketchy style has reported that, reiterating the facts in the police report in its totality it has submitted its own charge-sheet against the same fourteen public men before the Magistrate. The C. B. I. , does not appear to have registered any cross-case in respect of the specific allegations of the petitioners against the local and the district level officials nor has submitted any consequential final report for consideration for acceptance, of the competent court. Re: Haridwar and Muzaffarnagar : 243. As a culminating point of their civil disobedience movement, the people from Kumaon and Garhwal, decided to proceed to New Delhi to hold a demonstra tion before the central authority in support of their demand, on 2nd October, 1994. For this purpose they had sought and were granted permission by the Commis sioner of Police, Delhi. The buses from Kumaon region which took route via Rampur, Moradabad, Ghaziabad reached New Delhi without any hindrance. Those com ing from the districts in Garhwal region, took the route via Mohund in Saharanpur, Gurukul Narsen in Haridwar, Chhapar and Rampur Tirana in district Muzaffar-nagar. The rallyists from this region were proceeding in approximately 300 buses and included besides men also children, girls and women. Two of the buses were occupied exclusively by women. 244. Earlier on 30-9-1994 a meeting of all the District Magistrates and Super intendents of Police of the Meerut Division, was called by Commissioners, Meerut Divisions, which was also attended by Zonal I. G. , Mr. S. M, Naseem and the Range D. I. G. , Mr. Buwa Singh. Two of the buses were occupied exclusively by women. 244. Earlier on 30-9-1994 a meeting of all the District Magistrates and Super intendents of Police of the Meerut Division, was called by Commissioners, Meerut Divisions, which was also attended by Zonal I. G. , Mr. S. M, Naseem and the Range D. I. G. , Mr. Buwa Singh. In response to the wireless message received from the Commissioner of Police, Delhi, to ensure that the rallyists entering Delhi were not armed, it was decided to set up check posts at various places in Haridwar, Roorkie, Saharanpur and Muzaffarnagar districts. 245. According to the joint report of the D. M. and S. P. , Saharanpur, as per instructions they on 1-10- 1994 tried to pursuade the rallyists not to proceed further towards Delhi. Two of the buses returned after being so advised. Rest 53 buses containing about 3000 rallyists were stopped and checked at about mid-night, but nothing incriminating was found. 246. The rallyist and the buses were also chekced at Gurukul Narsen in the night of 1/2-10-1994 and nothing incriminating were found. The rallyists who had got restive, proceeded further by removing barricades at Gurukul Narsen ; one of the ladies was relieved, by police of her gold chain there. Tear 9 gassing and lathi charge was also resorted to. One person is also stated to have received fire-arm injury. Finally the same carvan of buses was again stopped at the check point near Rampur-Tiraha at Haridwar- Muzaffarnagar-Delhi road the same night, by blocking the entire width of the road by placing trucks with the purpose of obstructing flow of traffic, in a totally dark area. At first instance 345 rallyist including 286 male and 47 females were arrested at about 11-30 p. m. and were" taken to the Police Lines where they were released unconditionally under orders of the S. D. M. at about 5 p. m. on 2-10-1994. According to Hie authorities, the rallyists indulged in stone throwing as a result of which they resorted to Sathi charge. Extensive damage was, however, caused to the buses of the rallyists and their headlights, with obvious in tention to prevent their movement towards Delhi. 247. Under the pretext of making search for lire-arms etc. According to Hie authorities, the rallyists indulged in stone throwing as a result of which they resorted to Sathi charge. Extensive damage was, however, caused to the buses of the rallyists and their headlights, with obvious in tention to prevent their movement towards Delhi. 247. Under the pretext of making search for lire-arms etc. and taking ad vantage of the melee caused by lathi charge, 17 women rallyists travelling in the buses were physically molested, three others were raped inside the buses, and four were dragged to the nearby fields and raped, ail by the police and P. A. C. men. The policemen also snatched and tore the clothes of these women. They also forcibly snatched watches, chains and cash. All this happened between midnight and 3 a. m. in the night of 1/2- 10-1994. Some lady rallyists also complained about abusive and derogatory language used by the A. D M, (Executive), Muzaffarnagar and D. I. G. , Meerut Range. 248. In the early hours of 2 10-1994, a carvan of 53 more buses carrying ral lyists from Dehradun reached Rampur Tirana and joined about 2000 persons al ready held up there from the preceding night. This group refused to be searched and brickbatted on the policemen, when warning became ineffective, lathi charge, tear gassing and firing with rubber bullets were resorted. Forty-five policemen received injuries in this incident. The District Magistrate, Muzaffarnagar ordered firing. Twenty-four rounds were fired from. 303 rifles and ten rounds by stenguns resulting into death of five persons Ravindra Rawat, Girish Bhadri, Rajesh Lakhera, Satendra Chauhan and Surya Prakash Sharma and injuries to 35 others. One person Rajesh Negi is still missing. Shots by automatic weapons resulting into deaths were fired by Deputy S. P. Jagdish Singh and Superintendent of Police R. P. Singh by taking these weapons from Constable Subhash Chandra and another Con stable, and a false F. I. R. of firing in self-defence was got lodged. Another Dy. S. P. Mr. Nainwal and gunners of the Additional S. P. also fired with automatic weapons. 249. Pages and entries in the police General Dairies and Log Books of relevant dates were found to have been changed, tampered and interpolated with connivance of higher officials. 250. Another Dy. S. P. Mr. Nainwal and gunners of the Additional S. P. also fired with automatic weapons. 249. Pages and entries in the police General Dairies and Log Books of relevant dates were found to have been changed, tampered and interpolated with connivance of higher officials. 250. A four members team of National Commission for Women which visited and met the affected people at their places in Gopeshwar, Srinagar, Tehri and Dehradun, also affirmed the incidents of rape, 0 molestation, depriving of personal effects at Gurukul and mostly at Rampur Tirana and saw marks of injuries by lathi, danda on the legs and thigh of some of the women victims and abnormally blue and swol len breasts of another victim as a result of molestation and assault on private parts. 251. The C. B. I. , on investigation also found 11 cases registered at P. S. Chhapar, district Muzaffarnagar, about alleged recovery of country-made pistols and used cartridges, from the buses and the nearby areas to be fake and the weapons planted by the police, and has launched prosecution against concerned officials. 252. C. B. I. in this regard has, besides investigating the 45 F. I. Rs. registered against the rallyists and others by the State police, also registered 24 F. I. Rs. in the matter of alleged rape and molestation, three F. LRs. in the matter of conspiracy, wrongful restraint, wrongful detention and tampering records, against the police and other officials, though formally none regarding the act of deliberate shooting, and use of excessive force by the concerned officials and abettors. Re : Arrests and detentions : 253. Of those arrested between August and December, 1994, in all 1379 per sons were remanded to custody. 398 out of them, some of them minor, were lodged in jails far away from the hills. These detentions of undertrials in far flung jails are sought to be justified on the ground firstly, of the administration being possessed of power to do so, and secondly on a faint plea of the necessity to segregate them from the inmates of the jails in the hill areas. 254. These detentions of undertrials in far flung jails are sought to be justified on the ground firstly, of the administration being possessed of power to do so, and secondly on a faint plea of the necessity to segregate them from the inmates of the jails in the hill areas. 254. Irrespective of the merits or otherwise of the grounds of arrest, there can be no two opinion that the detention at far away jails, at a distance of about 300 to 800 kilometres from the place of arrest, away from the jurisdiction of Magistrate/courts competent to grant remand or bail, and try the alleged offences, denying the fundamental right to consult and be defended by a lawyer of their choice, and be kept within the proximity of such Magistrate/court, enshrined in Articles 21 and 22 of the Constitution, read with Sections 50, 56, 57, 122 (1), 167 and 303 of the Code of Criminal Procedure, were obnoxious enough to constitute violation of the detenus human rights. 255. The detenus not being convicts but undertrials, the prison or the district authorities or, for that matter, the Magistrate sanctioning the initial remand, did not have jurisdiction to place, or transfer, them for detention to jails outside and far away from the jurisdiction of competent Courts. 1 256. Also there is no material worth the name to indicate that the detenus were a security hazard or there was no available space at the relevant time in the concerned or nearby jails, to lodge them. The documents placed on record on the other hand indicate that much before effecting arrests, the decision to send them to far flung jails in the eastern and southern parts of the State, was Administratively taken. 257. Such as above being the state of affairs, there can be no escape from the conclusion that the State and its officials, at most of these places, grossly over reached to the situation arising out of civil movements of the people of Kumaon and Garhwal. Their acts of commission and omission, particularly at Khatima, Mussoorie, Gurukul-Narsen and Muzaffarnagar, were nothing short of State ter rorism, which unfortunately is of late on increase, given the unbriddled muscle power enjoyed by the bureaucracy at places. 258. Their acts of commission and omission, particularly at Khatima, Mussoorie, Gurukul-Narsen and Muzaffarnagar, were nothing short of State ter rorism, which unfortunately is of late on increase, given the unbriddled muscle power enjoyed by the bureaucracy at places. 258. Even if at some point, during the courts of a civil movement, some provocation may have come from agitationists at some of the places, given the in herent limitations on the extent of powers under Chapter IV (particularly Sections 96 to 106) of the I. P. C. and Chapter X (particularly Section 129) of the Cr. P. C. , the same could not give the State or its officials, a licence for indiscrimate killing, or keeping the detenus without food and water and detaining many of them in far flung jails, literally denying them any effective legal assistance and opportunity to approach the Magistrate/court having jurisdiction, to seek liberty or at least a fair deal. 259. As the facts emerging prima fade from the enquiry conducted by the C. B. I. , and other material on record indicate, people were shot at Khatima in cold blood. Bodies of four of those killed in Khatima were surreptitiously removed even while they were breathing their last, and were disposed wiih a view to minimise number of deaths, and of the three deaths which were acknowledged, the bodies of those dead were not handed over to their family members despite their persistent entreaties, rather were disposed of mid-way between Pilibhit and Khatima. All these besides constituting a brazen violation of human rights, also amount to caus ing disappearance of evidence to screen, whosoever be the perpetrators of these henious crimes, from justice. 260. At Rampur-Tiraha and Gurukul Narsen, apart from wrongfully restraining and detaining, those going to Delhi on a valid permit, killing and causing in juries; the incidents of rape and molestation and heaping other indignities on girls and ladies, looting their ornaments and other belongings are an example of savagery, unknown even to the primitive men, and has come to stay as a permanent scar on the face of the nation. 2 261. In the matter of Mussoorie, the killing at the hands of the agitators or their sympathisers, of young injured Dy. 2 261. In the matter of Mussoorie, the killing at the hands of the agitators or their sympathisers, of young injured Dy. S. P. seeking succour at the hospital, who probably was also not a part to the alleged fatal assaults, is a serious stigma on the claim of wholly peaceful agitation there, and the individual perpetrators of the said crime deserve to be condemned and tried ; but there also the killing of seven per sons including two ladies who had their heads shattered by close range firing, is prima facie indicative of an over-reaction and mishandling of the situation by the authorities, before, during and immediately after, the incident, resulting into viola tion of human rights of the people on both sides. One such example of mishan dling, to quote, is leaving the injured Dy. S. P. uncared to the extent that he had to go to seek medical attention to save his life, unprotected in the same ambulance with the injured agitationists. 262. The contention in these petitions advanced on behalf of some of the respondent officials by their learned counsel that no conclusion could fairly and legally the drawn by the Court, in these proceedings with regard to these incidents, and the persons and agencies responsible for the same, because no cross-examina tion of the witnesses has been permitted, and it may amount to pre- judging the guilt of those who may be prosecuted, is also devoid of merit. The intent and pur pose of enquiry in a petition complaining of violation of basic human rights being, to repair the damage done to an individual, class or a region, to the extent possible, and take remedial measures to prevent recurrence, than to punish individual per petrators of what may be an offence under the penal laws, the principle of strict proof liability is not attracted, and it is permissible to draw the conclusions based on prima facie material including affidavits, enquiry reports of independent agen cies, and the attending circumstances. [see Delhi Judicial Services Association v. State of Gujarat and others, AIR 1991 SC 2176 : 1992 JIC 72 (SC), Nilabati Behera v. State of Orissa, AIR 1993 SC 1960 : 1993 JIC 587 (SC), and Arvinder Singh Bagga v. State of U. P. , AIR 1995 SC 117 : 1994 JIC 613 (SC)]. 263. [see Delhi Judicial Services Association v. State of Gujarat and others, AIR 1991 SC 2176 : 1992 JIC 72 (SC), Nilabati Behera v. State of Orissa, AIR 1993 SC 1960 : 1993 JIC 587 (SC), and Arvinder Singh Bagga v. State of U. P. , AIR 1995 SC 117 : 1994 JIC 613 (SC)]. 263. Such materials abound on record of these petitions to enable coming to a conclusion as arrived at above. For establishing guilt beyond reasonable doubts, or otherwise, of any individual be it an official or other person, however, resort will still have to be had to a trial in accordance with the provisions of the Code of Criminal Procedure. And such trial in a given case may even fail on individual merit, irrespective of the conclusion herein. 264. In proceedings under the Code while the prosecutor may press for a charge under Section 240 or Section 228, as the case may be, it will still be open to those indicted by means of a charge-sheet by the investigating agency, to seek discharge u/s. 239 or 227 on the plea of there* being no sufficient ground for proceeding. On final or closure report, being submitted by the investigating agency in any matter or, omitting to enquire, the person affected or aggrieved, including the petitioner, shall have a right to be 3 heard before such report is accepted, and to move a protest application or a complaint before, the Magistrate empowered to take cognizance, besides recourse to S. 319 of the Cr. P. C. 265. Yet another question debated as to whether any sanction of the State Government as referred in Section 197 of the Cr. P. C. will be required for initiating prosecution of such of the Public Servants as may be found prima facie liable to be prosecuted for the crimes committed, directly or vicariously, also needs considera tion at this stage. What Section 197 contemplates is the prosecution of a Judge or Magistrate or a public servant not removable from his post, save by or with the sanction of the Government, accused of any offence alleged to have been com mitted by him while acting or purporting to act in discharge of his official duty ; and lays down that no Court shall take cognizance of such offence except with the previous sanction of the employer Government. Thus it is not every act done or omitted by a public servant while on duty, which comes within the mischief of this provision. The act complained of must have a direct nexus to the discharge of offi cial duty. The law in this regard has vividly and categorically been laid down by the Privi Council as well as the apex Court in H. H. B. Gill v. The King, A. I. R. 1948 Privy Council U. S. Amrik Singh v. State of Pepsu AIR 1955 S. C. 309, Matajog Dubey v. H. C. Bhari, AIR 1956 SC 44 , Balbir Signh v. D. N. Kadian, AIR 1986 SC 345 . 266. The acts of wrongful restraint and detention, planting weapons to show fake recoveries, deliberate shooting of unarmed agitators, hounding and herding women rallyists in the darkness of night, and thus facilitating situations known it to be likely that their modesty may be outraged and they may be victim of other sexual offences ; actual commission of rape and molestation, tampering with and framing incorrect records, dishonouring the dead and disposing of bodies of those dead in a clandestine manner, screening offenders from law, and depriving people of their ornaments and other belongings, even if done, during the performance of a law and order duty, are neither acts done nor purported to be done in the discharge of official duties. No sanction of the Government thus is required in ordering prosecution of such public officials. 267. In case like the present one, where on conducting investigation under orders of the High Court sufficient material has come to light, establishing gross violation of human rights, and prima facie commission of offences of the nature of wrongful restraint and detention, in furtherance of criminal conspiracy, tampering of public records, deliberate killings, looting valuables, and rape and molestation or women, there is a statutory obligation on the investigating, agency to submit charge-sheet, otherwise a report under Section 173, Cr. P. C. in the competent court. The question of absence, or otherwise, of a sanction in such cases cannot be raised, nor the jurisdiction of the Magistrate to take cognizance challenged at the threshhold ; though it may be open to the accused to place material during course of trial for showing that the impugned acts were interrelated with his official duty, so as to attract the protection afforded by Section 197, Cr. P. C. This view is fortified by the law laid down by the Supreme Court in B. P. Srivastava v. N. P. Mishra, AIR 1970 SC 1661 . 4 268. As far as the aspect of much awaited trials for rape and molestation is concerned, based on my experience of four decades ; as a lawyer, a public prosecutor and a trial Judge, 1 would venture to say that the entire process of a trial, for offences involving inroads on privacy and modesty of women, including acts of rape and molestation, is for the victim the most harrowing experience in life. The mental agony and the social stigma faced by a victim of such bestiality is fur ther compounded by the gruelling attempts by a cross-examiner on behalf of the accused to attack her chastity or derive what may be a sadistic satisfaction, by making her to describe for the gallery, how sarees and blouses were torn, breasts padded or sexual assaults made. The law in this regard, to say the least, is still at a primitive stage, unable to protect the honour and dignity or women and to bring the monsters committing such ugly crime to book. A victim of rape, in such a situa tion has virtually to die twice, in her life time ; once when as a napless person she becomes target of someones lust, and again when she has 10 verbally reconstruct her night-marish experience in a court of law. There thus, should be no hesitation in treating victims of rape and molestation, in the same category as those killed, in the matter of providing reliefs whatever and wherever possible. 269. Tb sum up therefore, in the nature of facts established in the cause before this Court, there being no escape from the conclusion that there has been a gross violation of human rights of the victims of violence, looting, sexual assaults and the like, belonging to the hills of the State in particular, and betrayal of the confidence of the people of those regions in general, at the hands of the officials, named or otherwise ; the said officials as well as the State administration of Uttar Pradesh, are liable for the constitutional torts. 270. 270. As to the powers of the Court to award in a writ jurisdiction, appropriate reliefs including direction for prosecution of the offencers, and compensation to victims by way of damages for violation of human rights, there can be no two opinion that, the courts in India, or for that matter in any civilized society, wedded to the rule of law, do possess such powers and jurisdiction. The Supreme Court in a catena of decisions, vividly referred to in the opinion rendered by brother Ravi S. Dhavan, J. , has exhaustively and categorically laid down the principles in this regard and it does not appear necessary or expedient to repeat the same herein. The defence of exercise of sovereign power or immunity of the Slate in regard to liability for tort, is too outdated a theory to be accepted. [see State of Rajasthan v. Mst. Vidyawati, AIR 1962 SC 933 , Saheli v. Commissioner of Police, Delhi and others, AIR 1990 SC 513 : 1990 JIC 256 (SC)]. 271. The quantum of compensation awardable to the victims herein, of course, will have to be determined in the perspective of the entire gamut of the incidents, where these unsuspecting citizens of the hill areas were subjected to brutalities al most unparalleled in the annals of modern India, at the 5 hands of those whose responsibility it was to protect, rather than to kill or mutilate ; to honour the dig nity of womenhood, than to defile it. The compensation to the individuals thus has to be exemplary, besides repairing the damage to the self-respect and spirit of the people of a whole area on the principle of reparation. CONCURRING JUDGMENt By the Court - This Court, accordingly, is of the opinion that the reliefs and directions as have been enumerated hereinafter would be just, equitable and ex pedient. The reliefs are: Of those who were killed in the agitations, the C. B. I. reports their numbers as 24, the compensation to the dependents of each of the deceased shall stand at Rs. 10,00,000. This will include the Deputy Superintendent of Police, Uma Kant Tripathi, who died during the agitation at Mussoorie, and the Fire Brigade Driver, Jeet Bahadur, aat Pauri, District Pauri Garwal. 10,00,000. This will include the Deputy Superintendent of Police, Uma Kant Tripathi, who died during the agitation at Mussoorie, and the Fire Brigade Driver, Jeet Bahadur, aat Pauri, District Pauri Garwal. Also to be included amongst the list of persons to be considered for compensation is the dependents/legal repre sentatives of Rajesh Negi reported to be missing after the event of firing at Muzaffarnagar on 2nd October, 1994. 2. Of the women molested and raped, the C. B. I. reports their numbers as 24, the Court views the circumstances of these cases the same as death and grievous hurt. Of those ladies who were subjected to rape, of the seven cases investigated by the C. B. I. , each shall be entitled to receive compensation being the same as for victim of death, at Rs. 10,00,000. Of those who were molested, of the seventeen cases investigated by the C. B. I. , their modesty was outraged, and for each of the ladies the compensation shall stand at Rs. 5,00,000. 3. Of every person identified with grievous hurt each of such person shall be entitled to a compensation of Rs. 25,000, and such of those who suffered permanent disability, each shall be entitled to Rs. 2,50,000. 4. Of those who were detained and lodged in far off jails, 398 in number, denied access to the nearest Magistrate to secure their liberty of being enlarged on bail, the compensation for violating the rule of law shall stand at Rs. 50,000 to each to the person detained and referred to in the information called by the Court and filed by the Government Advocate, U. P. 6 5. The names of the persons entitled to receive compensation will be scrutinised and identified and drawn up as a list. For this purpose, this Court con siders it appropriate and fit to appoint a Committee consisting of the two present Commissioners, as of date at Garhwal and Kumaon. They will draw out a list of those entitled to compensation and sent the list to the Government within two months from today under intimation to this Court. The names of the ladies reported by the C. B. I. to have been subjected to molestation and rape will be dealt with as confidential and classified information in all communications and cor respondence by the Committee, aforesaid. 6. The names of the ladies reported by the C. B. I. to have been subjected to molestation and rape will be dealt with as confidential and classified information in all communications and cor respondence by the Committee, aforesaid. 6. The amount representing compensation be placed in the hands of the Commissioners of the Division, concerned, Garhwal or Kumaon, as the case may be, by the State of U. P. within one month of the list being so submitted by the Committee of the Commissioner, aforesaid. The amount will be disbursed to be persons, entitled, within one month. Of the compensation which is to be received by those entitled, of the amounts of Rs. 2,50,000 and above will be available to the recipients as Government of India, Tax Free Relief Bonds, 1995. 7. The State of U. P. shall be free to consider whether the compensation as has been awarded by this Court or any part thereof would be liable to be recovered from those persons in public service who face trial or consequential Administrative action. 8. Damages and compensation for constitutional wrongs committed subjecting injuries to the class of people of Kumaon 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 Kumaon and Garhwal divisions shall stand related to their population (5, 926, 146 : Kumaon - 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 Kumaon 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 Kumaon and Garhwal representing (i) Members of the Parliament of the areal; (ii) Members of the Legislative Assembly of the area, and (iii) the District Magistrates of the district concerned. 9. The details of the allocation will be chalked out and formalised at a meeting which will be called by the Commissioners of Kumaon and Garhwal representing (i) Members of the Parliament of the areal; (ii) Members of the Legislative Assembly of the area, and (iii) the District Magistrates of the district concerned. 9. Of investigations which have not been completed by the C. B. I. , as of date, these should be finalised, and prosecution of offenders found prima facie accused of various offences should see charge-sheets 7 being submitted against them without delay or within two months with a copy of such charge-sheet filed on the record of these cases before this Court. 10. Cross version or cross allegations regarding shooting and deliberate and wanton killings, and also of the dead who were initially reported as alive but missing and abetting or creating or permitting or lending occasions to commission of rape and molestation, particularly of the events at Mussoorie, Khatima and Muzaffarnagar be investigated and separate reports on them u/s. 173 of the Code of Criminal Procedure, 1973 be submitted lo the competent Court within two months with a copy of such reports filed on the record of these cases before this Court. 11. Suspension or otherwise, of administrative action befitting the prima facie cases against those persons in service of the State for the Union, booked for trial, to be considered by the competent appointing authority on the merits of the nature of allegations contained in the charge-sheet. 12. Trial for offences within the districts of the Kumaon 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 Muzaffarnagar, to be held in the Court in Ses sions 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 Slate of U. P. in consultation with the High Court, within one month and until so established, the charge-sheet, in context, shall be submitted into the Court of the Chief Judicial Magistrate, and dealt with in accordance with Chapter XVI of the Code of Criminal Procedure. 13. The Magistrates and the Presiding Officers of the Sessions Division trying these offences be provided adequate Securities and facilities and staff etc. 13. The Magistrates and the Presiding Officers of the Sessions Division trying these offences be provided adequate Securities and facilities and staff etc. by the State of U. P. in consultation with the High Court. 14. The proceeding in trial for offences against women be held in camera. 15. The State of Uttar Pradesh may consider establishing a Human Rights Commission for complaints as are alleged within the State, as envisaged in the Human Rights Act; 1992, a legislative intent of the Parliament which is being ig nored by the State for long. 16. The Government of India should seriously consider the ninety Second Report of the Law Commission of India on Damages in Applications for Judicial Review : Recommendations for Legislation, forwarded by 8 the then Chairman of the Law Commission, by his letter No. F. 2 (8)/83-L. C. dated August 16, 1983, as damages in public law has already been accepted as a known phenomenon for con sideration of Courts. 17. The trials before the Magistrates or Court of Sessions shall be uninfluenced by any observations in the judgment of the Court herein. The trial shall be on merits of each case as it emerges during the course of the proceedings in accordance with the provisions of the Code of Criminal Procedure. 18. All the writ petitions, thus, succeed. Of the writ petition which saw trans fer by the orders of the Supreme Court and were re-numbered as -Writ Petition Nos. 39919 of 1994, 39920 of 1994, 39921 of 1994 and 40216 of 1994 and the writ petition which was initially filed in this Court an carried the order dated 7th Oc tober 1994, being Writ Petition No. 32982 of 1994 shall entitled the petitioners or set of petitioners in the respective writ petitions to costs which are quantified at Rs. 10,000, recoverable from the State of Uttar Pradesh. 19. The Registrar, High Court shall send a copy of this judgment within a week to: (a) The Law Commission of India, New Delhi; (b) The Director, Central Bureau of Investigation, New Delhi; (c) The Commissioners: Kumaon an Garhwal Division; (d) The District Judges at Dehradun, Haridwar, Muzaffarnagar, Nainital, Chamoli and Pauri; (e) The government of India, Ministery of Home Affairs, New Delhi. The Writ Petition, thus, succeeds with cost as indicated. Petition allowed. .