WA 611/2005 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY THE HON’BLE MR. JUSTICE B.D. AGARWAL JUDGMENT AND ORDER (CAV) (Amitava Roy, J) These appeals on varying counts lay challenge to the common judg ment and order dated 22-03-2005 rendered in WP(C) No.5817/2004 and WP(C) No.6187 /2004. The appellants in Writ Appeal No.560/2005 and Writ Appeal No.561/2005 are respectively the writ petitioners in WP(C) No.5817/2004 and WP(C) No.6187/2004. Whereas, the Respondent Nos.4 and 5 in WP(C) No.6187/2004 are the appellants i n Writ Appeal No.135/2006, the State of Manipur, respondents in these writ proce edings figure as the appellant in Writ Appeal No.611/2005 and 612/2005. 02. The principal assailment in the aforementioned writ petitions ha d been against the competence and authority of the State of Manipur to appoint a Commission under the Commission of Inquiry’s Act, 1952 (hereinafter for short r eferred to as the Act, 1952) for making an enquiry into the alleged killing of K M.TH. Monoroma Devi (for the sake of brevity referred to as Monoroma Devi/deceas ed) vide Notification No.8/1(1)/2004-H(Pt-II) dated 12.07.2004 of the Govt. of M anipur Secretariat(Home Department). By the judgment and order impeached, the l earned Single Judge held that the State of Manipur was not the appropriate Gover nment having administrative control over the armed forces deployed in the State and entitled to the protection amongst others of Section 6 of the Armed Forces ( Special Powers) Act, 1958(hereinafter for short referred to as the Act, 1958). H aving held so, the report submitted by the Commission was not construed to be on e as comprehended in Section 3 of the Act, 1952. This, notwithstanding the repo rt was adjudged to be one by a fact finding Committee/Body appointed by the Stat e of Manipur and was directed to be laid with the Union Government for scrutiny thereof and appropriate order(s)/action against the concerned personnel of the 1 7th Assam Rifles, if so indicated therein. Being aggrieved from their respectiv e perspectives, the parties have donned the gauntlet for redress. 03. We have heard Mr. C. Gonsalves, Senior Advocate for the appellan ts in Writ Appeal No.135/2006, Mr. D.K. Mishra, Senior Advocate for the appellan ts in Writ Appeal No.611/2005 and Writ Appeal No.612/2005 and Mr. S. Bhattacharj ee, learned Advocate for the appellants in Writ Appeal No.560/2005 and Writ Appe al No.561/2005. Mr. R. Sarma, learned Asstt. Solicitor General of India represe nted the Central Government in the appeals. 04. A fascicule of the essential facts is indispensable to lay the f actual backdrop. The pleadings in both the writ petitions are identical. The w rit petitioners’ were the personnel of different ranks with the 17th Assam Rifle s detailed at the relevant time at Katihalmabi, Imphal in the State of Naimpur. From time to time, the Government of India being aware of the secessionist acti vities of certain unlawful terrorist organizations and its members in the State had issued Gazette Notification banning the same in order to safeguard the sover eignty and security of the nation. By notifications, inter alia being No.71 dat ed 17-12-2001 and No.1022 dated 13.11.2003 such subversive activities of the Mem ti extremist organizations including the People’s Liberation Army and its politi cal wing were documented. The People’s Liberation Army generally known as PLA had also been designated as a terrorist organization by Section 18 read with the Schedule to the Prevention of Terrorism Act of 2002. According to the writ petitioners, the exhaustive dat a base developed and maintained by the 17th Assam Rifles (hereinafter for short referred to as the Assam Rifles) on the various underground organizations opera ting in the entire Imphal Valley and the other areas coupled with various intell igence reports indicated that Monoroma Devi @ Henthoi was a long serving member of the banned organization, PLA and a dreaded terrorist being engaged amongst ot hers in the activity of eliminating high profile targets and occasioning large c asualties. On receiving such information from a reliable intelligence source in the night of 10-07-2004 that she was lodged in the vicinity in the area Ban Kampu Mayyie L ekaei of Imphal, the Company Commanders of Assam Rifles stationed at Sinjami wer e alerted and an operation was ordered to nab her. Accordingly, at about 12.50 a.m. in the morning of 11.07.2004 a Mobile Vehicle Check Post was set up in the general area of Sanjmai which recorded an intelligence input that S.S. Corporal Hanthoi was at her residence at Kampu Mayyie Lekaei. Immediately two Tata Mini Trucks were sent on different routes and two armoured gypsies were dispatched to the house of the cadre and at about 3 a.m. on 11-07-2004 a cordon was thrown ar ound her house. The door of the house on being knocked, it was opened by Mr. Sa ilendra Singh, the younger brother of cadre, whereupon the house was searched an d S.S. Corporal Hinthoi @ Monoroma Devi arrested fromthere to be handed over to the local police. According to the petitioners, certain incriminating materials were also recovered from her. They averred that an arrest memo was duly prepar ed and witnessed as per the standard operative procedure as prescribed by the hi gher authority and a no damage claim certificate was also obtained being signe d and witnessed by the family members present. A copy thereof was also furnishe d to them. 05. At about 3.30 a.m. the personnel on operation decided to proceed towards the concerned police station to hand over the arrested lady cadre with the incriminating documents and accordingly a call was made to the control room thereof to arrange for a lady constable. According to the writ petitioners, at that point of time, the arrested cadre informed the patrol party that if she was not handed over to the police, she would deliver a radio set and hand grenade w hich were at her disposal. Following a dialogue with her mother, the latter wen t inside the house with two members of the patrol party and handed over to them one Singapore made Kenwood radio set and one Chinese made fragmentation type han d grenade both kept in a white cloth bag. A seizure memo was prepared duly sign ed and witnessed. 06. It was at that stage that S.S. Corporal Monoroma Hanthoi further revealed that there was a AK-47 Rifle in the possession of another lady cadre, namely S.S. Rubi living in the general area of Sinjamai. On being led by her, t he patrol party, according to the writ petitioners moved from place to place, bu t in vain. By that time it was about 4.45 a.m. and there was sufficient daylight , so much so, that the movement of the patrol party alongwith the arrested cadre was in the clear view of the members of the public present on the road. While the patrol party moved towards Waripok as suggested by Monoroma Devi, the latter requested for a temporary reprieve to ease herself. The request was acceded to and the patrol party took position at about 30-35 meters away from her to allow her the required privacy. The writ petitioners have asserted that it was then all of a sudden that Monoroma Devi started to flee through a gap in the nearby h edge. As inspite of repeated orders of the guard commander to stop, she defied the instructions, he (guard commander) fired a shot in the air to warn her and i nstinctively the other members of the patrol party fired at her legs following w hich she suffered bullet injuries to which she eventually succumbed. 07. The writ petitioners averred that on the vicious and hostile p ropaganda that was unleashed against the Assam Rifles thereafter at the behest o f the underground elements and their sympathisers alleging rape and killing of M onoroma Devi, a mass public hysteria was whipped up in the State of Manipur and more particularly in Imphal thus posing a serious threat to the lives of its per sonnel. Meanwhile, however the Commission was appointed by the Notification dated 12-07 -2004 and it issued summons to the petitioners to appear before it. The writ pe titioners also averred about serious threat to the lives of the personnel who ha d participated in the operation as well as their families from the terrorist org anizations. Situated thus, though from time to time, prayers were made with the Commission to conduct its proceedings in camera and also to guard against discl osure of their identities, the same remained unheeded. Being so placed, the pet itioners sought to invoke the writ jurisdiction of this Court seeking to annul t he proceedings of the Commission, inter alia on the ground that the State of Man ipur was not the appropriate authority to constitute the same in view of Section 2(a)(i) of the Act, 1952. They also challenged the proceedings of the Commissi on to be wanting in jurisdiction in the teeth of their protection U/s.6 of the A ct, 1958 sans the prior sanction of the Central Government. They also referred to a Army Court of Inquiry constituted on 12-07-2004 on the same incident and co mplained that inspite of necessary summons, neither the family members of the de ceased, nor any other civil witness did respond thereto. The writ petitioners a lso stated that the forensic report was awaited by the Army Court of Inquiry. 08. While the writ petitions were pending, Smti. Thangjam Ongbi Khum anld Devi and Shri Thangjam Dolendro Singh, the mother and the brother of the de ceased filed interim application in WP(C) No.6187/2004 seeking their impleadment as respondents therein. In the said application they alleged that at about 3.3 0 a.m. on 11-07-2004 some personnel of 17th Assam Rifles had entered into the ho use of the deceased situated at Ban Kampu Mayyie Lekaei and arrested her. They admitted of the issuance of an arrest memo to the family members of the deceased , but alleged that she was thereafter killed by the personnel of the Assam Rifle s and her dead body was abandoned near Kelrao Wangkhem along Ngariyan Yairapok R oad. 09. They further averred that on 12-07-2004 the applicant No.2 lodge d a written report with the Officer-in-Charge, Irilbong Police Station about the arrest and murder of Monoroma Devi on which Irilbong Police Station FIR No.30(7 )/2004 case U/s.302/34 IPC was registered. The applicants also referred to the formation of the People’s Action Committee on 12-07-2004 in deference to the sen timents of the local populace expressing condemnation over the episode and also apprehension of lack of safety and security due to the illegal acts committed by the Assam Rifles. The applicants justified the constitution of the Commission by the State of Manipur vide the impugned notification dated 12-07-2004 and als o referred to the order of this Court passed in WP(C) No.5817/2004 permitting it (Commission) to further its proceedings. In this background, applicants expres sed their desire to contest the challenge to the constitution of the Commission and its proceedings being vitally interested in the issues. 10. This Court by the order dated 18-05-2005 after hearing the parti es allowed the prayer and directed their impleadment as Respondent Nos.4 and 5 i n WP(C) No.6187/2004. These respondents however did not file additional pleadin gs. 11. The respondent-State in its exhaustive counter justified the con stitution of the Commission and the terms of reference outlining the contour of its fact finding pursuit. While admitting that at the relevant time, the entire State of Manipur had been declared to be disturbed area it however categorica lly pleaded that the Armed Forces present thereat had not been detailed in aid o f the civil authority and that the Assam Rifles do not share any information wit h the State Government. The answering respondent in details with reference to the relevant judicial pron ouncements set out the constraints on the exercise of the special powers of the Armed/Security Forces in course of their counter insurgency operations in a dist urbed area and in terms of the Act, 1958. While admitting that after the incide nt, in which Monoroma Devi had died, the Assam Rifles had lodged an FIR with the Irilbong Police Station to the effect that she was shot at her legs while fleei ng and that she succumbed to the injuries, the answering respondent also referre d to a different version laid by the younger brother of the deceased alongwith o ther leaders of the local organizations in a memorandum submitted with the State Government on 11-07-2004 alleging that she had been killed while in the custody of the Assam Rifles and that the no claim certificate had been extracted from the family members at gun point. It was further averred that in the face of la rge-scale protests and demonstration that followed, which threatened to snowball into a serious crisis, if prompt appropriate action was not taken, the State Go vernment, in response to its commitment of protecting the rights and liberties o f the citizens decided to have the facts and circumstances leading to the death of Monoroma Devi enquired by the Commission. 12. The answering deponent clarified that thereby it did not seek to enquire into the powers and functions of the Assam Rifles, but such a course wa s construed to be unavoidably warranted having regard to the public importance o f the issue before taking remedial steps as necessary. The state dismissed the petitioners’ plea that the uproar over the incident was at the behest of the und erground factions and also stressed upon the steps taken by it for providing ade quate security to the personnel of the Assam Rifles who were required to appear before the Commission as well as in general. The security measures taken by the State Government at the venue of the Commission and other strategic places were also detailed in the affidavit. The answering respondent expressed ignorance about the day-to-da y proceedings of the Army Court Inquiry said to be in progress. It asserted tha t having regard to the purpose of the enquiry, the Commission had been validly c onstituted under the Act, 1952 and that the same by no means could be repudiated as an encroachment on the power of the Union Government. It also asserted that as the enquiry by the Commission is not a legal proceeding within the meaning o f Section 6 of the Act, 1958, no prior sanction of the Central Government was es sential and therefore the impugned notification dated 12-07-2004 was valid. 13. In its affidavit the Respondent No.3, the Union of India affirme d about the constitution of a Court of Inquiry by the Commander, 9th Sector of t he Assam Rifles under Rule 177 of the Army Rules, 1954 to enquire into the incid ent of alleged custodial death of Monoroma Devi. While pointing out that the Co urt of Inquiry was constituted on 12-07-2004 it was further averred that during the course thereof, it revealed from the report of the Central Forensic Science Laboratory, Kolkata being C.F.S.L. EE/04(M.A.N.I) dated 09-08-2004 that traces o f semen had been detected on the petticoat supposedly worn by the deceased at th e time of her death. As the said disclosure seemed to suggest commission of rap e on the deceased before her death, the Army Court of Inquiry decided to subject all the personnel of the Assam Rifles taking part on the operation on 11-07-200 4 to blood tests and to compare their DNA profiles with that extracted from the traces of semen to ascertain the truth or otherwise of the allegation of sexual abuse on the deceased by the members of the patrol party. The answering respond ent asserted that pursuant to the said orders of the Court of Inquiry, blood sam ples of all the concerned personnel of the Assam Rifles were taken by the civil doctors at the Regional Institute of Medical Science (RIMS), Imphal and were con cealed and forwarded to the C.F.S.L., Koklata for DNA profile and further compar ison with the semen stain found on the petticoat stated to be worn by the deceas ed at the time of her death. The answering respondent also disclosed that in th is regard the Army Court of Inquiry reportedly requested the Manipur State Foren sic Laboratory, Civil Police and the State Bureaucracy for allowing C.F.S.L., Ko lkata to arrange for comparison of the DNA profile of the semen stain and thos e extracted from the blood samples of the Assam Rifles personnel but to no avail . The Union of India, through its counter, however endorsed the writ petitioners’ plea of lack of competence and jurisdiction of the State of Manipur to constitu te the Commission to enquire into the act/conduct of the Assam Rifles personnel who were at the relevant time acting as members of the armed forces in aid of ci vil authority. By order dated 24.05.006 passed by the learned Single Judge in Re view Petition No. 95/2005, the observation made in paragraph 25 of the impugned judgment and order recording the concurrence of Mr. Misra, with the views expres sed by Shri Dutta and Shri Gonzalvis was expunged. 14. Mr. Gonsalves, has persuasively argued with reference to Entry 2 and 2A of the Union List as well as Entry 1 and 2 of the State List that having regard to the acts of criminality perpetrated by a phalanx of the Assam Rifles personnel, the same could by no means be comprehended to be within their duties as such in the aid of civil power and therefore the State of Manipur was wholly within its power and jurisdiction to appoint the Commission to probe into the fa cts leading to the unfortunate incident involving the deceased. As the acts com plained were visibly beyond the official duties envisaged by the personnel of th e Assam Rifles, dischargeable in the aid of civil power as contemplated in Entry 2A of the Union List, but assuredly come within the domain of police surveillan ce, the State of Manipur, in view of the width and amplitude of the purview of E ntry 2 of the State List was authorized to constitute the Commission and prescri be the terms of reference as outlined in the Notification dated 12-07-2004, he u rged. 15. The learned Senior Counsel insisted that as the alleged acts of rape and murder of Monoroma Devi by the culpable personnel of the Assam Rifles a re wholly unrelated to the deployment of any armed force of the Union or the pow ers, jurisdiction, privilege and liabilities of the members thereof, in course o f such detailment, but instead are gory instances of individual excesses, the ch allenge to the lack of the jurisdiction of the State of Manipur to constitute th e Commission for enquiring into the facts relatable to the incident is obviously misconceived. While asserting that the proceedings of the Commission unerringl y establish that Monoroma Devi had been raped and shot at from a close range by some personnel of the Assam Rifles acting with prior concert, the learned Senior Counsel urged that the offending acts were palpably illegal and inhuman besides being in defilement of basic human dignity and right. The learned Senior Counse l, in particular contended that in the operation claimed to have been undertaken by the Assam Rifles, they had as well consciously flouted the imperatives to be observed as laid-down in plethora of decisions by the Apex Court and this Court to ensure fairness in the process in recognition to the basic human rights. To reinforce his arguments Mr. Gonsalves, placed reliance on the decision of the Ap ex Court in 1998 (2) SCC 109, (Naga People’s Movement of Human Rights Vs. Union of India (UOI) and of this Court in AIR 1989 Gau 81, (Border Security Force (B.S .F.) Vs. State of Meghalaya and Ors.). Mr. Mishra, appearing for the State while generally subscribing to the pleas adv anced on behalf of the appellants in Writ Appeal No.135/2006 has maintained that the Commission was appointed primarily to enquire into the facts leading to the incident and the terms of reference clearly demonstrate that the impugned Notif ication does not trench upon the areas covered by Entry 2 or 2(A) of the Union L ist. The learned Senior Counsel while admitting that as required U/s.3 of the A ct, 1958 a notification had been issued by the State Government declaring areas mentioned therein to be disturbed areas has urged that deployment of any armed f orce in aid of civil power ipso facto does not denude it (State Government) of i ts power and responsibility vis-à-vis public order. Mr. Mishra contended that ha ving regard to the groundswell of the seething protests and demonstrations from all sections of the society demanding uproar for determining the actual state-of -affairs, the State Government, in response to its solemn commitment for transpa rent governance decided to institute a fact-finding enquiry and hence constitute d the Commission vide the impugned notification. 16. As the progression of events following the incident manifested t ell tale signs of fast deterioration in public order, this initiative was taken to ascertain the correct facts. Mr. Mishra, has urged that as an armed force of the Union on deployment, has to essentially act in co-ordination with the State Police, the civil power of the State therefore does not cease to exist and thus in a given fact situation necessitating its intervention in the interest of pub lic order and tranquility, it cannot afford to remain a mute spectator. The learned Senior counsel with particular reference to the words with respect to applied in Article 246 of the Constitution of India and the Trenching Doctr ine has urged that the respective powers of the parliament and the State legisl ature to enact laws on the listed entries have to be adjudged on the measure of the canon of pith and substance and thus viewed the impugned decision of the G overnment is unassailable. Mr. Mishra, added that the limited use of the procee dings of the Commission as contemplated by the Act, 1952 or the mere possibility of the State not taking any action on the report thereof eventually does not si gnify absence of its power to constitute such Commission in matters of public or der. With reference amongst others to the progress report of the criminal cases registered on the information alleged as well as an extract of the report of th e Sarkaria Commission, on the deployment of Union Armed Forces in a State for pu blic order duties, Mr. Mishra insisted that the impugned decision of the State G overnment was indispensably warranted in the facts and circumstances in order to maintain public order and therefore having regard to he scheme of the Act, 1952 , the impugned notification is valid. The following decisions were cited to but tress his arguments:- 1988 (2) GLR 159, (Smti. Luithukla Versus Rishang Keishing & Others), 1988 (3) S CC 609, (Kehar Singh and Ors. Vs. State(Delhi Administration), (1977) 4 SCC, 59 6[I](Bhajan Singh Versus State of Punjab), 1998 (2) SCC 109, (Naga People’s Mov ement of Human Rights vs. Union of India), AIR 1947 PC 60, (Prafulla Kumar Mukhe rjee and others v Bank of Commerce Ltd., Khulna, The Advocate-General of Bengal- Intervener) AIR 1941 PC 47, (M.M.R.M Chettiar Firm v. S.R.M.S.L. Chettiar Firm and others), (1994) 3 SCC 569, (Kartar Singh Versus State of Punjab), 2004 (4) S CC 489, (Special Reference No.1 of 2001 etc.), 2002 (8) SCC 228, (Union of India (UOI) AND Ors. Vs. Shah Goverdhan L. Kabra Teachers College), AIR 1989 BOMBAY 8 1, (Union of India, v. Piedade Fernandes), 1998 (3) GLR 250, (Union of India & O rs. Versus State of Manipur & Ors.). 17. The learned Asstt. Solicitor General has dismissed the State Gov ernment’s plea