Jammu & Kashmir High Court - Srinagar Bench
B. A. Misri vs State Of J&K & Ors on 30 October, 2013
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR OWP (PIL) no. 01 of 2013 IA no. 360 of 2013 connected with PIL nos.4 of 2013 & 12 of 2013 B. A. Misri Advocate Mian Tufail Abdul Manan Bukhari Petitioners State of J&K & ors Respondents !Mr. B. A. Misri, Advocate in person Mr. Mian Tufail, Advoate in person Mr. Aijaz Ahmad Dar, Advocate in 12/2013 ^ Mr. M. I. Qadri, AG Mr. Shah Aamir, GA, for the State Mr. S. A. Makroo, ASG, for UOI Honble Mr. Justice M. M. Kumar, Chief Justice Honble Mr. Justice Ali Mohammad Magrey, Judge Date: 30/10/2013 : J U D G M E N T :
1. These three writ petitions, professedly filed in public interest by three different persons relate to more or less the same subject matter. Two of them have been filed by two Advocates. In the first two writ petitions, the petitioners have sought a direction to the respondents / security agencies not to use pepper gas in mob management, whereas in the third writ petition the petitioner has also sought mandamus for non-use of pellet guns.
2. OWP no. 01/2013 is primarily filed on the ground that the police is rampantly using pepper gas and tear gas to disperse mobs which has far reaching consequences on non-combatants, bystanders and the dwellers of the area. It is averred that the gases are of hazardous nature which can induce or aggravate respiratory diseases, pulmonary edema, acute elevation in blood pressure associated with risk of stroke and heart attack. It is alleged that the use of gases has already claimed several lives and that the same infuse multifarious disorders, diseases and uneasiness especially among the children and aged. Writ petition, OWP no. 04/2013, has been filed on almost identical assertions. In both these petitions, the claims put forth by the petitioners is solely based on newspaper reports which has not been substantiated in material particulars by any authentic evidence.
3. In the third petition, i.e., OWP no. 12/2013, the grievance projected is against use of Pellet Guns and marble shots besides the use of pepper gas. It is alleged that the deadly pellet guns and marble shots are being used by the Police and CRPF personnel directly targeting the vital parts viz. eyes, chest, head, back, abdomen etc. in order to disperse mobs. The contention raised is that use of pellet guns and marble shots tantamount to using excessive force which is not permissible under Section 128 of the Code of Criminal Procedure. The petitioner has also appended with the writ petition two self styled statements containing the names of 32 persons who are alleged to have been fatally injured by the use of excessive force and use of either pepper gas, pellet guns or marble shots at different places in the Valley in the last few years. Apart from that, one Hajira Begum wife of Habibullah Bhat of Rehbab Sahab, Aali Kadal aged 50 years, shown at serial no.4 of the first list (annexure A) is alleged to have died because of inhaling of pepper gas.
4. In response to notice of motion having been issued the respondent-State filed a detailed reply in OWP no.01/2013 which was also adopted as reply in OWP no.04/2013 as well as OWP no.12/2013 as per the statement made by learned Advocate General which is reflected in the order dated 11.07.2013. The respondent-UOI filed a separate reply in OWP no.12/2013. The respondent-state also filed a supplementary affidavit in response to OWP no.12/2013.
5. The respondent-state in their reply have stated that the instant petition does not serve any public interest, but seems to be an attempt by the petitioner to gain publicity over a very sensitive issue. It is averred that the J&K Police stands committed to protect and preserve the life and property of the people and at the same time maintain normalcy and peace in the State so that no hardship / disturbance is caused to the people. The actions taken to achieve this goal are based solely on good faith and are backed by the mandate of law. It is stated that over the past few years the State in general and Kashmir Valley in particular has witnessed sporadic incidents where unruly mobs of stone pelters have attempted to disturb the law and order thereby threatening the peace and normalcy in the State. By the passage of time, the size and strength of these unruly mobs have also been generally increasing and these chronic stone pelters have also changed their modus operandi. They attack the police personnel deployed for maintaining law and order from all directions with stones, with intention to kill them as well as with intention to cause damage to the life and property of the general public. In order to control and disperse these unruly mobs and unlawful assemblies, Section 128 of the Code of Criminal Procedure authorizes the legitimate and proportionate use of force by law enforcing agencies. However, in order to ensure minimum loss of life and damage to property, the law enforcing agencies have procured for use various non-lethal munitions to disperse such like unruly mobs. These non-lethal munitions include the Tea Smoke Shells and Oleoresin Grenades. These tear smoke and Oleoresin Grenades are internationally accepted non-lethal means of controlling unruly mobs to restore law and order. It is stated that in order to avoid causalities, it becomes imperative for police to use force for controlling the mobs by using non-lethal weapons like tear smoke and Oleoresin Grenades. It is further stated that the members of stone pelting mobs, besides pelting stones, also use catapults and petrol bombs to attack the security forces giving them the least chance to disperse those unruly mobs by means of lathi-charge etc. It is averred that detailed standard operating procedures are in existence which regulate the proportionate use of force. It is averred that the Valley witnessed the sporadic incidents of stone pelting since the year 2008 and during this period 2317 incidents of stone pelting have taken place in which 5643 J&K Police and 1356 CRPF personnel were injured and property worth crores was either set ablaze or damaged by the unruly mobs.
6. In respect of tear smoke and oleoresin grenades, it is stated that the same are completely safe for combating law and order situation, including flushing out operations. The respondents have place on record the detailed toxicology reports of ortho-Chlorobenzylidene Malononitrile (CS) used in tear smoke munitions and the tear gas munitions filled with Oleoresin Capsicum (40 capsaicinolds).
7. In the supplementary affidavit filed in response to OWP no.12/2013, it is stated that unruly mobs resort to heavy stone pelting upon security forces personnel, besides attacking them with petrol and kerosene bombs causing imminent danger to their life. In order to disperse these unruly mobs with the minimum damage to life and property of public, including members of unruly mobs, various steps were undertaken to disperse those unlawful assemblies which include use of water canons, lathi-charge and tear smoke munitions, including oleoresin grenades. However, when these means fail to yield the desired results, the law enforcing agencies had to use 12 Bore Pump Action Guns only in exceptional cases. The ammunition used in this kind of weapon consists of small pellets made of paper and lead and its impact, when properly used is superficial and the same has minimum chances of inflicting any grievous injuries. The averment that the weapon is used targeting vital body parts has been vehemently denied.
8. The persons named in the first list (annexure A) to the petition are alleged to have been killed by use of pepper gas / pellet guns / marble shots. The supplementary affidavit has specifically denied the allegations in each individual case. We deem it imperative to summarize hereunder what is stated about each of these individuals:
S. no. & Annexur e to the writ petition Name of the alleged victim Statement of allegation made in annexure to the writ petition Date of alleged death / injury Statement made in the supplementary affidavit based on police report.
1- A Sajad Ahmad Darzi Injured during 2010 agitation on August 13, 2010 and succumbed to his injuries on May 19, 2012.
He was hit by pellet fired by CRPF and Police to disband protesters.
19.05.2012 The said person has reportedly died on 19.05.2012 due to cancer of bones. The cause of death issued by the doctors of SKIMS is (a) Ewing sarcoma (b) B/L Plural effusion (c) Cardio arrest.
2- A Abdul Rashid Sheikh Died of excessive use of pepper gas released by Police and CRPF.
17.02.2013 On 17.02.2013, there was no law and order problem in the area of Ali Kadal, Srinagar. No pepper gas was used and as such the allegation that the person died due to pepper gas is denied.
3-A Muhammad Yousuf Sofi Died after inhaling pepper gas fired by police and CRPF.
20.02.2013 On 20.02.2013 no pepper gas / pellet gun was used in Batmaloo area as there were no protests. As such the allegation that the person died due to pepper gas is denied.
4-A Hajira Begum Died after Inhaling pepper gas fired by Police 03.08.2012 On 08.03.2013 there were restrictions u/s 144 Cr. P. C. imposed in District Srinagar by orders of DM, Srinagar.
There were no protests and no pellet gun / pepper gas was used.
As such the allegation that the person died due to pepper gas is denied.
9. As regards the second list appended as annexure B to the petition, 28 individuals stated to have been injured by use of pepper gas / pellet guns / marble shots., in the supplementary affidavit it has been deposed that 16 persons named therein (serial nos. 2, 3, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19, 24, 25 and 26) were not injured in any incident at all in the towns shown in the list. In regard to the person shown at serial no.1, it is stated that the said individual got injured due to tear gas shell fired to disperse miscreants by police on 30.06.2009 which rebounded from shutter of a shop at Maisum, Srinagar and hit the said person who was passing in the street at that moment. It is stated that case FIR no.50/2009 under Sections 147, 148, 332, 307, 336 RPC stands registered in Police Station Maisuma. As to the person figuring at serial no.4 of the list, it is stated that he alongwith other miscreants resorted to heavy stone pelting on 18.09.2010 on Police personnel deployed at new Bridge Mohalla Jadeed Baramulla. The miscreants were persistently advise to desist from stone pelting, but of no use. While dispersing the unruly mob, minimum force was used during which one unidentified person who was part of the unruly mob reportedly got injured and case FIR no.182/2010 stands registered at Police Station Baramulla relating to the incident. In regard to the person mentioned at serial no.6 of the list, it is stated that the individual was a member of unruly mob which attacked police and para military forces in Sopore on 19.08.2010 deployed for law and order duties. The use of force to disperse the mob had become imperative during which the said individual got injured. In this connection, it is stated that a case FIR no.414/2010 was registered at Police Station Sopore. In respect of the lady figuring at serial no.17, it is stated that on 31.07.2010 an unruly mob attacked the police station building at Kreeri and set ablaze the building besides resorting to heavy stone pelting on the PMF deployed in the area. The CRPF personnel fired some rubber bullets due to which the said lady got injured. Case FIR no.73/2010 under Sections 148, 149, 436, 332, 427, 188, 307 RPC is stated to have been registered in Policed Station Kreeri into the incident. Investigation of the case is stated to have culminated into production of a challan in the court of law. Similarly, the persons named at serial nos. 18, 21, 22, 23 and 27 of the list are stated to have been members of unruly mobs distinctly showing the places where they had resorted to attacks on security forces and in the process of using minimum force they got injured. In respect of the persons shown at serial nos. 5 and 28 of the list it is stated that since their full particulars have not been given, therefore, it is not possible to give the factual report vis-`-vis them.
10. A separate reply has also been filed by respondents 1, 2, 7 and 8 in OWP no.12/2013. It is generally stated therein that pellet gun fires are used by the security force only in exceptionally worst conditions in self defence as well as to protect lives of innocent citizens and public properties when violent crowds take law in their hands and tend to disturb law and order in the society.
11. We have heard the petitioners in person in two of the writ petitions, who are themselves Advocates and the learned counsel for the petitioner in the third petition. We have also heard Mr. M. I. Qadri, learned Advocate General representing the Respondent-State; and Mr. S. A. Makroo, learned ASG, representing the respondents-UOI, and have bestowed our thoughtful consideration on the whole issue.
12. The tool of public interest litigation has been devised to reach injustice wherever it is found overcoming financial, economic, geographical and locus standi barriers so as to strengthen the hand of social action groups. These petitions styled as Public Interest Litigations have been filed without any empirical research and in a totally casual manner. As a result averments have been made which have no authenticity; without any supportive documentary evidence. In fact averments are based on false and incorrect assumption. Obviously, the only legal inference that could be raised by the Court is that these PILs have been filed not for public interest, but to gain cheap publicity which constitutes an oblique motive. The statements made in these petitions are based on newspaper cuttings and documents downloaded from internet. Before coming to the Court through these PILs, the petitioners have not even bothered to verify the newspaper reports from any reliable source. No doubt a mere letter, can be treated as a PIL but it does not arm the petitioners with a right to approach the court without placing authentic information before the Court(s). A small application under RTI could have brought answer to all the questions which have been raised in these petitions and the necessity of filing such petitions would not have survived. For example it could have been ascertain as to what are the contents of pepper gas. What are its harms? .The precious time of the court might have been utilized elsewhere. However in a case like one in hand when factual statements are made by a petitioner knowing fully well that the same are false and incorrect, the element of professed public interest is lost and it is only for publicity interest.
13. In the present case, it is admitted as a fact that few persons who were injured have been participating in unruly mob frenzies. Such persons cannot seek support of PIL because they cannot be categorized as weak and disadvantaged who on account of poverty, helplessness or economic and social disabilities are unable to approach the Court for relief, if they have a cause. Moreover law and order situations are best left to be handled by the State which has constitutional and legal duty to maintain the same. The courts cannot act as eavesdropper and keep guiding the law enforcing agencies to act in a particular way on day to day basis. Such a course is not in fact recommended by any Court.
14. During the course of arguments, one of the petitioners, Mr. B. A. Misri, Advocate, passed on a copy of the slip stated to have been tendered by one Dr. Muzaffar Mirza, HOD Chest Medicine, Chest Disease Hospital Drogjan Dalgate before the State Human Rights Commission hearing the complaints on use of pepper gas etc., to emphasize that use of such non-lethal munitions are detrimental to people. Apart from the fact that the said statement has been tendered by the named Doctor on hear-say basis inasmuch as he has stated therein that he has not personally examined any such patient. The petitioner, is a practicing Advocate. It defies ignorance that he would not have knowledge as to how the documents are passed on to the Court. This fact is mentioned only to highlight the carelessness of the petitioners in filing and prosecuting these PILs.
15. Mr. M. I. Qadri, learned Advocate General, submitted at the Bar that there is a certificate issued by the Experts which says that Oleoresin Grenades containing 40% of capsaicinolds does not have any adverse physiological effect on human beings, and that this Court may not like to sit in appeal over the opinion of the Experts. The learned Advocate General, in this connection, has cited and relied upon the judgment of the Supreme Court in Greater Kailash Part II Welfare Assn. v. DLF Universal Ltd., (2007) 6 SCC 448. Our attention has been pointedly drawn to a certificate issued by (Dr. Parvin Kumar) Scientist F, Joint Director Defence R&D Establishment, Ministry of Defence Gwalior 744002 and the conclusions drawn give complete answer to the petitioners imaginary allegations. The conclusion from the certificates are extracted below and quoted as under in extenso:
After detonation, the maximum concentration of CS emitted by largest Tear Smoke Munitions manufacture by TSU, Tekanpur will not be more than 1,5690 mg/m3 for a small room (size 10x12x10) as per the above calculations. The lethal concentration or LC50 of CS for guinea pig, which is the most sensitive animal model for such type of respiratory studies, is 35,000 mg/min/m3. Hence above scientific study based on already proven data, the percentage of CS used in manufacture of Tear Smoke Munitions in Tear Smoke Unit, Tekanpur is safe for combating law and order situations including flushing out operations.
Oleoresin grenades containing 40% of capsaionold does not have any adverse physiological effect on human begins.
This is to mention that the tear gas munitions are only used to control or temporarily incapacitate crowd involved in law breaking during social unrest by inducing unbearable or harassing responses like tears, sensory irritation, suffocation, nausea etc. which may not be considered as adverse effect.
16. The Public Interest Litigation jurisdiction does not give right to come to the Court with bald statements unsupported by material particulars and documents. This jurisdiction has been carved out by judicial creativity in order to provide access to poor, depraved, vulnerable, discriminated and marginalized sections of the society, particularly so when such persons or class of persons, by reason of their poverty, helplessness, or on account of disability being socially or economically in a disadvantaged position cannot come to the Court. Of course, it has been expanded to matters where the executive is acting in violation of law affecting general masses. But the basic factor remains that only such petitions are required to be entertained where the petitioner(s) is/are acting bona fide and not for any ulterior motive, personal gain, private profit, political motivation or other oblique or extraneous considerations. The scope of public interest litigation has been succinctly summarized by the Supreme Court in Guruvayoor Devaswom Managing Committee v. C. K. Rajan, (2003) 7 SCC 546, in paragraphs 41 to 48. Broadly speaking, it has been observed in the aforesaid judgment that the branch of proceedings known as social action litigation or public interest litigation was evolved with a view to render complete justice to the poorest of the poor, the depraved, the illiterate, the urban and rural unorganized labour sector, women, children, those handicapped by ignorance, indigence and illiteracy and other downtrodden persons who have either no access to justice or had been denied justice. It expanded its wings in course of time and Courts in pro bono publico granted relief to inmates of prisons, provided legal aid, directed speedy trials, maintenance of human dignity and covered several other areas. But with the passage of time, things started taking different shapes. The process was sometimes abused. Proceedings were initiated in the name of public interest litigation for vindicating private disputes. Some petitions were publicity oriented. A balance was, therefore, required to be struck. The Courts started exercising greater care and caution in the matter of exercise of jurisdiction of PIL. The Courts insisted on furnishing of security before granting injunction and imposing very heavy costs when a petition was found to be bogus or filed with oblique motive. In paragraph 52 of the aforesaid judgment, Honble the Supreme Court relief upon its earlier opinion expressed in BALCO Employees Union (Regd.) v. Union of India, (2002) 2 SCC 333, and in paragraph 53 ruled that we do not intend to say that the dicta of this Court in BALCO Employees Union contain the last words. But the same may be considered to be in the nature of guidelines for entertaining a public interest litigation. We would place reliance on paragraphs 78, 79 and 80 of the Supreme Court judgment in BALCO Employees Union case which reads as under:
78. While PIL initially was invoked mostly in case connected with the relief to the people and the weaker sections of the society and in areas where there was violation of human rights under Article 21, but with the passage of time, petitions have been entertained in other spheres. Prof. S. B. sathe has summarized the extent of the jurisdiction which has now been exercised in the following words:
PIL may, therefore, be described as satisfying one of more of the following parameters. These are not exclusive but merely descriptive:
Where the concerns underlying a petition are not individualist but are shared widely by a large number of people (bonded labour, under trial prisoners, prison inmates).
Where the affected persons belong to the disadvantaged sections of society (women, children, bonded labour, unorganized labour etc.).
Where judicial law-making is necessary to avoid exploitation (inter-country adoption, the education of the children of the prostitutes).
Where judicial intervention is necessary for the protection of the sanctity of democratic institutions (independence of the judiciary, existence of grievance redressal forums).
Where administrative decisions related to development are harmful to the environment and jeopardize peoples right to natural resources such as air or water.
79. There is, in recent years, a feeling which is not without any foundation that public interest litigation is now tending to become publicity interest litigation or private interest litigation and has a tendency to be counterproductive. (emphasis added)
80. PIL is not a pill or a panacea for all wrongs. It was essentially meant to protect basic human rights of the weak and the disadvantaged and was a procedure which was innovated where a public-spirited person files a petition in effect on behalf of such persons who on account of poverty, helplessness or economic and social disabilities could not approach the Court for relief. There have been, in recent times, increasingly instances of abuse of PIL. Therefore, there is a need to reemphasize the parameters within which PIL can be resorted to by a petitioner and entertained by the Court. This aspect has come up for consideration before this Court and all we need to do is to recapitulate and re-emphasize the same.
17. Thus in paragraph 80 of the judgment in BALCO Employees Union case (supra) the Supreme Court has clearly laid down the parameters within which PIL can be resorted to by a petitioner and entertained by the Court. And in paragraph 53 of the judgment in Guruvayoor Devaswom Managing Committee v. C. K. Rajan (supra) the Supreme Court has laid down that the dicta in BALCO Employees Union case be considered to be in the nature of guidelines for entertaining a public interest litigation.
18. Following the dicta in BALCO Employees Union case and applying the same to the case in hand this petition on the face of it is not maintainable since it is not meant to protect basic human rights of the weak or disadvantaged who on account of poverty, helplessness or economic and social disabilities could not approach the Court for relief. On the other hand, given the the nature of the controversy sought to be raked, we are convinced that it has been filed for oblique and extraneous considerations. There is catena of judgments of Honble the Supreme Court where such practice has not only been deplored, but people filing such petitions have been burdened with costs. Reference in this regard may be made to the decision rendered in the cases of State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC 402. In paragraphs 143 to 158, the judgment contains reference to its earlier decisions in BALCO Employees Union v. Union of India, (2002) 2 SCC 333; S. P. Gupta v. Union of India, 1981 Supp SCC 87; Chhetriya Pardushan Mukti Sangharash Samiti v. State of U. P., (1990) 4 SCC 449; Neetu v. State of Punjab, (2007) 10 SCC 614; S. P. Anand v. H. D. Deve Gowda, (1996) 6 SCC 734; Sanjeev Bhatnagar v. Union of India, (2005) 5 SCC 330; Dattaraj Nathuji Thaware v. State of Maharastra, (2005) 1 SCC 590; Charan Lal Sahu v. Zail Singh, (1984) 1 SCC 390; J. Jayalalitha v. Govt. of T. N., (1999) 1 SCC 53; and Holicow Pictures (P) Ltd. v. Prem Chandra Mishra (2007) 14 SCC 281 wherein the Supreme Court broadly tried to curtail the frivolous public interest petitions by monetary and non-monetary methods. In Dattaraj Nathuji Thaware v. State of Maharastra (supra) it was observed that Court must not allow its process to be abused for oblique considerations. In Sanjeev Bhatnagar v. Union of India (supra), the Supreme Court found that the petition was devoid of public interest and dismissed the petition with costs of Rs.10,000. In Holicow Pictures (P) Ltd. v. Prem Chandra Mishra (supra) the Supreme Court in paragraph 12 of the judgment observed as under:
It is depressing to note that on account of such trumpery proceedings initiated before the courts, innumerable days are wasted, which time otherwise could have been spent for the disposal of cases of the genuine litigants. Though we spare no efforts in fostering and developing the laudable concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed, unrepresented and unheard; yet we cannot avoid but express our opinion that while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and criminal cases in which persons sentenced to death facing gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for long years, persons suffering from undue delay in service matters government or private, person awaiting the disposal of cases wherein huge amounts of public revenue or unauthorized collection of tax amounts are locked up, detenue expecting their release from the detention orders, etc. etc. are all standing in a long serpentine queue for years with the fond hope of getting into the courts and having their grievances redressed, the busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either of themselves or as a proxy of others or for any other extraneous motivation or for glare of publicity, break the queue muffing their faces by wearing the mask of public interest litigation and get into the courts by filing vexatious and frivolous petitions and thus criminally waste the valuable time of the courts and as a result of which the queue standing outside the doors of the courts never moves, which piquant situation creates frustration in the minds of the genuine litigants and resultantly they loose faith in the administration of our judicial system. While dealing with the case State of Uttaranchal v. Balwant Singh Chaufal (supra), the Supreme Court issued certain directions to frame rules for filing of PILs which are in place within these jurisdiction. Their lordships also issued directions for observance of the High Courts, which included the following two directions:
(7) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation;
(8) The Courts should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.
19. In view of the law laid down by the Supreme Court coupled with our finding that this petition has been filed half heartedly and with oblique motive, we deem it appropriate to decline the prayer made by the petitioners.
20. All these petitions are accordingly dismissed alongwith the connected CMPs. Taking a lenient view, we do not impose any costs on the petitioners keeping in view that both the advocates are at the threshold of their career. However we would like to observe that they should remain careful in future and up hold the highest tradition of the legal profession. Accordingly the proceedings in these so called PIL petitions are closed.
(Ali Mohammad Magrey) (M. M. Kumar)
Judge Chief Justice
Srinagar,
30.10.2013
Syed Ayaz, Secretary