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2018 DIGILAW 1550 (GAU)

Union of India v. State of Nagaland

2018-10-15

KALYAN RAI SURANA

body2018
JUDGMENT : Kalyan Rai Surana, J. 1. Heard Mr. Yangerwati, the learned CGC, assisted by Mr. Z. Kulnu, the learned Counsel. Also heard Mr. P. Choudhury, the learned Special Counsel, along with Mr. K. Wotsa, the learned Senior Govt. Advocate for the State of Nagaland. 2. The matter was heard in part on 9.10.18 and 11.10.2018 and the argument was concluded today. 3. Five writ petitioners herein have jointly filed this writ petition. The petitioners are (1) The Union of India, through its Secretary, Ministry of Home Affairs, New Delhi, (2) General Office Commanding, 3 Corps, C/o. 99 APO, (3) Inspector General of Assam Rifles, (North), C/o. 99 APO, (4) The Commanding Officer, 46, Assam Rifles, C/o. 99 APO, (5) The Commanding Officer, 12 PARA (SF), C/o. 99 APO. The respondents herein are (1) The State of Nagaland, Represented by its Chief Secretary, Govt. of Nagaland, (2) The Special Secretary to the Govt. of Nagaland, Home Department, Nagaland, Kohima, (3) The Judicial Inquiry Commission (Regarding Wuzu Firing Incident), Represented by the Chairman, Camp: Circuit House, Opp. Ancient Rajbari, Dimapur, Nagaland, (4) The Commissioner of Police, Dimapur, Nagaland. 4. In the writ petition, the petitioners have prayed for the following reliefs:- (a). To quash and set aside the Notifications No. CON/LOR- 3/2015 dated 10 August, 2015 (Annexure-A-5), No. CON/LOR- 3/2012 dated 13 November, 2015 (Annexure-A-7) and subsequent orders No. JIC-WFI/OR/2016/025 and 26 dated 20th April and 21st April, 2017 (Annexure-13) directing for issuance of bailable warrant along with the Warrant of Arrest dated 24.05.2017. (b). Why any other appropriate writ/order or direction should not be issued to give complete justice to the petitioners and to give effect to safeguard the lives and personal liberty of the personnel of the Assam Rifles Battalion and Armed Forces Special Force guaranteed under Article 21 of the Constitution of India and upon cause or causes being shown and on hearing the parties to make the Rule absolute and or pass any other order or orders as your Lordships may deem fit and proper. And in the interim pending disposal of the writ petition, the Hon'ble Court may be further pleased to stay the operation of the impugned notification dated 10th August, 2015 and subsequent notification No. CON/LOR- 3/2012 dated 13th November, 2015 and order of arrest warrants all dated 24th April, 2017. 5. And in the interim pending disposal of the writ petition, the Hon'ble Court may be further pleased to stay the operation of the impugned notification dated 10th August, 2015 and subsequent notification No. CON/LOR- 3/2012 dated 13th November, 2015 and order of arrest warrants all dated 24th April, 2017. 5. The case projected in the writ petition is that the petitioners have filed the present writ petition challenging, inter-alia, the competence and jurisdiction of the State Government to appoint Wuzu Firing Incident Inquiry Commission in purported exercise of powers under the Commission of Inquiry Act, 1952 for the purpose of making an inquiry as to the (i) cause of death of 2 (two) minor children and injury to 1 (one) woman, (ii) persons responsible for the firing, (iii) and whether it could have been avoided. The jurisdiction of the Commission to issue warrant of arrest vide order dated 24th April, 2017 to compel the witnesses to depose before the Commission is also challenged. 6. In the writ petition, it is projected that in the night of 13th July, 2015 the Armed Forces Special Force had launched a special operation in general area of Village - Avangkhu on receipt of inputs from various sources about presence of suspected NSCN(K), who were planning to ambush Security Forces. On 16th July, 2015, at approx. 0030 hours, exchange of fire with NSCN(K) cadres took place in which 2 (two) NSCN(K) cadres were killed and one possibly injured. The Officer-in-charge of the Armed Forces Special Force had also sustained gunshot wounds. A party of Assam Rifles was moved at about 1015 hours on 16th July, 2015 for de-induction of the party which had eliminated NSCN(K) cadres. After taking due clearance from the Villagers of Avangkhu, the two parties were returning back to Melluri with bodies of the two dead NSCN(K) cadres. On reaching Pokhungri, the injured Officer-in-charge of the column was evacuated to Dimapur by helicopter. At Pokhungri, the Civil Administration Officials including Additional Deputy Commissioner, Melluri and Assistant Sub-Inspector, P.S., Melluri and Extra Assistant Commissioner, Pokhungri had reached, but the bodies of the 2 (two) NSCN (K) cadres were to be handed over at Melluri, the Officer-in-Charge of de-induction party of Assam Rifles Battalion moved from Pokhungri to Melluri at 1530 hours. At Pokhungri, the Civil Administration Officials including Additional Deputy Commissioner, Melluri and Assistant Sub-Inspector, P.S., Melluri and Extra Assistant Commissioner, Pokhungri had reached, but the bodies of the 2 (two) NSCN (K) cadres were to be handed over at Melluri, the Officer-in-Charge of de-induction party of Assam Rifles Battalion moved from Pokhungri to Melluri at 1530 hours. At 1900 hours approx., when the party reached Village - Wuzu, about 80-100 villagers had assembled on either side of the road and blocked the movement of the column, demanding that the dead body of Self Styled Captain Puhochu, resident of Wuzu be handed over to them. During conversation, there was a burst of fire from automatic weapons. Accordingly, the column retaliated with fire after dismounting. After firing had stopped, the Officer-In-Charge found that one officer had sustained glass splinter injury on his right hand and one rifleman had sustained gunshot wound in lower back. It was also learnt that two minor children had also got injured during cross fire and succumbed to the said injury. While villagers lodged an FIR with Police Station, Melluri on 16th July, 2015, the Assam Rifles also lodged an FIR in Melluri P.S. on 17th July, 2015. 7. The Govt. of Nagaland vide notification No. CON/LOR-3/2012 dated 18th July, 2015 ordered a Magisterial Inquiry and the Additional Deputy Commissioner, Phek called witnesses for hearing on 24.07.2015. Thereafter, vide letter No. CON/LOR-3/2012 dated 10th August, 2015, the Govt. of Nagaland had ordered a judicial inquiry into the Wuzu Firing incident. Accordingly, on 22nd August, 2015 the Officer-In-Charge of Assam Rifles received third summons from the Office of the Superintendent of Police, Phek, asking him to appear physically for the inquiry. Subsequently, the armed forces personnel, who were summoned where given sanction by the Additional Director General (Discipline & Vigilance) Integrated Head-quarter of Ministry of Defence (Army) to provide only written statement and respond to questionnaire in writing and that it was provided that none of the personnel will depose before the Inquiry ordered by the State. Accordingly, on 22nd September, 2015 the statement of Major Surinder Singh Khyali had been submitted and the written statement of Captain Abhishek Singh, Captain Prateek Goel and Niab Subedar Gawai Rajesh were submitted to the Office of the Superintendent of Police, Phek in respect of Melluri P.S. Case No. 6/2015 under Section 302/307/338/166/34 on 28th September, 2015. 8. Accordingly, on 22nd September, 2015 the statement of Major Surinder Singh Khyali had been submitted and the written statement of Captain Abhishek Singh, Captain Prateek Goel and Niab Subedar Gawai Rajesh were submitted to the Office of the Superintendent of Police, Phek in respect of Melluri P.S. Case No. 6/2015 under Section 302/307/338/166/34 on 28th September, 2015. 8. Thereafter, a fresh notification vide No. CON/LOR-3/2012 dated 13th November, 2015 was issued by the Chief Secretary, Govt. of Nagaland, superseding the previous notification No. CON/LOR-3/2012 dated 10th August, 2015 by which the Governor of Nagaland was pleased to constitute a Single Member Committee of Shri Veprasa Nyekha, a Retired District & Sessions Judge as "Wuzu Firing Incident Inquiry Commission" under Sub- Section (1) of Section 3 of the Commission of Inquiry Act, 1952, requiring the report to be submitted to the State Govt. within 1 (one) month from the date of the notification. 9. Accordingly, on 24th November, 2015 the "Wuzu Firing Incident Inquiry Commission" invited written statement from all witnesses, both Civil and Armed Forces by 12th January, 2016. Accordingly, on 29th December, 2015 the written statement of Major Surinder Singh Khyali, Captain Abhishek Singh, Captain Prateek Goel and Niab Subedar Gawai Rajesh and Inquiry Reports of Captain Abhishek Goel and Rifleman M.K. Ojha was forwarded to the Chairman, Wuzu Firing Incident Inquiry Commission. The latest statement of Major Surinder Singh Khyali, Captain Abhishek Singh, Captain Prateek Goel and Niab Subedar Gawai Rajesh and Rifleman M.K. Ojha were again forwarded to Wuzu Firing Incident Inquiry Commission on 27th and 28th March, 2017. Thereafter, on March, 2017 the Wuzu Firing Incident Inquiry Commission dispatched summons requiring witnesses to be present for cross examination before the Commission. Thereafter, the said Commission had issued bailable Warrant of Arrest against the aforesaid 5 (five) Armed Force personnel, which was forwarded by the Commissioner of Police, Dimapur vide letter No. CP/DMR/CB-85/2017-18/211 dated 2nd May, 2017 which was received in the Office of the Headquarter Inspector General of Assam Rifles (North) on 24th May, 2017. 10. The petitioners have challenged the power and authority of the State Government to constitute Commission of Inquiry to inquire into the conduct of the Armed Forces or its personnel acting in the aid of civil authorities. By referring to the Full Bench decision of this Court BSF Vs. 10. The petitioners have challenged the power and authority of the State Government to constitute Commission of Inquiry to inquire into the conduct of the Armed Forces or its personnel acting in the aid of civil authorities. By referring to the Full Bench decision of this Court BSF Vs. State of Meghalaya, AIR 1989 GAU 81 , it is projected that the Government of Nagaland had no power or authority to appoint a Commission of Inquiry as the subject matter relates to Entry 2A of List-I of Schedule-VII, as the Union of India had absolute control over the armed forces, as such, it is projected that even if the State Government gets power even for the limited purpose of inquiry, there would be complete erosion of the power and authority of the Central Government. It is projected that the Division Bench of this Court in W.A. No. 99/1998 - Union of India Vs. State of Manipur & Ors., had held that the Sanamacha Inquiry Commission could not inquire into the duties and functions of the Armed forces of the Union. It is projected that the Army Court of Inquiry has already been conducted and that there was no need to have another Inquiry covering the same aspects. Hence, it is also projected that the Army personnel cannot be compelled to appear before the Wuzu Firing Incident Inquiry Commission, which is constituted in contravention of Section 2(a)(i) of the Commission of Inquiry Act, 1952. It is also projected that the provisions of Section 3 and 6 of the Armed forces (Special Powers) Act, 1958 provide protection to the persons acting under the Act and, as such, the State Government cannot appoint any Commission of Inquiry in respect of armed forces personnel and the fact finding body comes within the meaning of "other legal proceeding" as contemplated under Section 6 of the Armed Forces (Special Power) Act, 1958. 11. The learned counsel appearing on behalf of the learned CGC has referred to the statements made in the writ petition and the grounds set forth therein and he has submitted that the State Government cannot constitute any Inquiry regarding the actions taken by the Armed Forces personnel in course of their duty to provide aid to the Civil Administration. It is submitted that the death of two children and injury to one woman had occurred during cross- firing. It is submitted that the death of two children and injury to one woman had occurred during cross- firing. Hence, the armed forces personnel, having faced Army Court of Inquiry, cannot be subjected to any inquiry by the State Government, when the State Government had no power or authority to constitute any such inquiry involving armed forces personnel. The learned Counsel has challenged the legality and validity of the constitution of Wuzu Firing Incident Inquiry Commission 12. The learned Special Counsel appearing for the State respondents has submitted that even without going through the defence raised by the respondents, on the basis of the averments made by the petitioners, the subject matter raised in the present writ petition are matters which are squarely covered under Article 131(a) of the Constitution of India and, as such, this Court does not have jurisdiction to adjudicate upon the matters raised in the present writ petition. 13. It is submitted that the reference to the Entry 2A of List-I of Schedule-VII of the Constitution of India was misapplied and read out of context because in the present case the State has not ventured to make any Legislation contravening Entry 2A of List-I of Schedule-VII of the Constitution of India. Rather, both the provisions of Commission of Inquiry Act, 1952 and Armed Forces (Special Power) Act, 1958 are Central Legislation. While Commission of Inquiry Act, 1952 is in force in the State, under Schedule - V of the Nagaland Code, the Armed Forces (Special Power) Act, 1958 is in force in the State under Schedule-VI of the Nagaland Code. Hence, the Governor of the State was fully empowered to notify the setting-up of Wuzu Firing Incident Inquiry Commission vide the Notification No. CON/LOR-3/2012 dated 10th August, 2015. By referring to the various provisions of both Acts, it is submitted that there is no provisions in the Armed Forces (Special Power) Act, 1958 which prohibits setting up of Inquiry Commission under Commission of Inquiry Act, 1952 if any firing incident involving death or injury to the citizen in the State of Nagaland was sought to be inquired into. 14. It is submitted that under the Commission of Inquiry Act, 1952 no penal consequences were contemplated. However, only a report prepared under inquiry would be send to the Government of Nagaland. 14. It is submitted that under the Commission of Inquiry Act, 1952 no penal consequences were contemplated. However, only a report prepared under inquiry would be send to the Government of Nagaland. It is submitted that Public Order (but not the use of naval, military and air force or any other armed force of the Union or of any other force to the control of the Union or of any contingent unit thereof in aid of the civil power) is under Item -1, List-II of Schedule- VII of the Constitution of India, which is a State subject. 15. Moreover, it is submitted that there are two FIRs dated 16.7.2015 and 17.7.2015, inter-alia, containing different versions of the same firing incident, which had resulted in the death of 2 (two) Class- VII students and gunshot injury to one woman. It is submitted that while the army personnel had fired 143 rounds of bullets, no other bullets were found at site. Hence, it was within the competence of the Government of Nagaland to constitute a fact finding inquiry. It is submitted that the death of two minor children and gunshot injury to a lady is definitely having civil consequences for the State Government, as such, the present writ petition was misconceived and not maintainable. 16. It is submitted that the Union of India does not have any fundamental rights under Part-Ill of the Constitution of India. Hence, if the Union of India has to challenge the State action of constituting Wuzu Firing Incident Inquiry Commission, the litigation brought about is contemplated only under Article 131 of the Constitution of India. Hence, the present case cannot be maintainable before this Court. 17. Having heard the learned Counsel for both sides, the materials available on record have been perused. At the outset, the provisions of Article 131 of the Constitution of India is quoted below:- "131. Hence, the present case cannot be maintainable before this Court. 17. Having heard the learned Counsel for both sides, the materials available on record have been perused. At the outset, the provisions of Article 131 of the Constitution of India is quoted below:- "131. Original jurisdiction of the Supreme Court.- Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute- (a) between the Government of India and one or more States; or (b) between the Government of India and any State or States on one side and one or more other States on the other; or (c) between two or more States, If and in so far as the dispute involves any question (whether of law or fact) on which the existence of any legal right depends: Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute." 18. Thus, as in the present writ petition, the petitioners, i.e. the Union of India and others have raised a question that the setting up of Wuzu Firing Incident Inquiry Commission under Commissions of Inquiry Act, 1952 contravenes the existence of legal right which depends on the provisions of Armed Forces (Special Power) Act, 1958. Such questions are found to be disputes envisaged under Article 131 (a) of the Constitution of India. However, the provisions of Article 131 confers jurisdiction only to the Hon'ble Supreme Court and also provides for exclusion of jurisdiction of all other Courts. 19. Therefore, as Article 131 of the Constitution of India specifically excludes the jurisdiction of this Court, this Court has no option but to invoke the jurisdiction under Order VII Rule 10 CPC to return the present writ petition filed on 19.07.2017 back to the petitioner for presenting the same before the court competent under Article 131 of the Constitution of India. The petitioner may do the needful in accordance with law, as they may be so advised. 20. The Registry may return the first copy of the writ petition together with all enclosures and vakalatnama to the petitioners. The petitioner may do the needful in accordance with law, as they may be so advised. 20. The Registry may return the first copy of the writ petition together with all enclosures and vakalatnama to the petitioners. The second copy of the writ petition and a photocopy of the vakalatnama shall be retained for record.