IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.F.A No. 44 of 2001 with Cross-objection No. 45 of 2001. Judgement reserved on: 18.6.2008 Date of decision: 29.8.2008. State of H.P. & anr. ….. Appellants. Vs. Hardev Singh Guleria & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. A.K.Bansal, Additional Advocate General. For the Respondents : Mr. K.D. Sood, Advocate Mr. Sanjeev Sood, Advocate, for respondents No. 1 & 2. Kuldip Singh, Judge. This judgement shall dispose of RFA No. 44 of 2001 and Cross Objection No. 45 of 2001 arising out of judgement, decree dated 29.4.2000 passed by learned Additional District Judge, Mandi in Civil Suit No. 2/1997(91), decreeing the suit of respondents No. 1, 2 against appellants for Rs.3,60,000/- inclusive of Rs.1,50,000/- ex- gratia grant alongwith interest at the rate of 12% per annum, from 28.12.1991. 2. The brief facts of the case are that respondents No. 1, 2 filed a suit against the appellants and respondent No. 3 for recovery Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… of Rs.5,00,000/-. The case of respondents No. 1, 2, as pleaded in the plaint, is that on 27.9.1990 one Ramesh Rana committed self immolation as a protest against “Mandal Commission Report” by pouring kerosene oil at Gandhi Chowk, Mandi at about 1.30 p.m. in full glare of police and District Administration. He was removed to Civil Hospital with 80% burn injuries. On hearing the news of self immolation, students and many residents of Mandi town came out in streets and they wanted to meet the Deputy Commissioner in this connection, but they were not allowed to do so by the police. They pelted stones, as a result of which people ran for safety. Respondent No. 3 at that time was serving as DIG police and was standing in civil dress near “Pedaka” in Chohatta Bazar, he without warning fired at Ajay Guleria at 2.30 p.m., who suffered serious injuries on left nose side towards head and fell on the ground and was profusely bleeding. Ajay Guleria was taken to private clinic and from there to Civil Hospital, Mandi, where he was declared dead. It has been alleged that respondent No. 3 shot Ajay Guleria dead by his fire arm without any provocation from Ajay Guleria or from any other person. The police and respondent No. 3 did not act in good faith, they crossed all limits and committed crime without any justification. The police did not record FIR despite many efforts. Respondent No. 1 later on filed a criminal complaint under Section 302 IPC against respondent No. 3 before learned Chief Judicial Magistrate, Mandi. 3. It has been alleged that many persons received injuries at the hands of the police. There was no restriction for assembly of persons, no resort was made to lathi charge nor any warning was …3… given for dispersal of the crowd nor assembly was declared unlawful. The people were not taking any offensive action. In the criminal action of the police four young boys lost their lives and many received serious bullet injuries making them infirm and crippled throughout their lives. The State is responsible for the wrongful actions of its servants. 4. It has been pleaded that Ajay Guleria son of respondents No. 1, 2 was born on 17.4.1971 and was a student of Part II non-medical. He was very brilliant, physically stout. He was a meritorious student and secured first division. He wanted to become an engineer. He would have received an average Rs.5000/- per month salary and contributed a lot to the family. The respondents No. 1, 2 due to the death of Ajay Guleria in terms of money have suffered a loss of Rs.10,55,000/-. However, respondents No. 1,2 confined their claim in the suit to Rs.5,00,000/-. A notice, under Section 80 CPC was issued to appellants and respondent No.3 on 7.3.1991. The suit was originally filed in this court, but later on suit was transferred to learned District Judge, Mandi, who assigned the same to learned Additional District Judge, Mandi. 5. The appellants contested the suit by filing joint written statement. The respondent No. 3 had also filed separate written statement. The appellants have taken preliminary objections of maintainability of the suit by pleading sovereign immunity, objections of vagueness of the plaint and lack of cause of action have also been taken. On merits, it has been admitted that Ramesh Rana committed self immolation on 27.9.1990 and he died on the same …4… day. It has been alleged that unlawful mob indulged in acts of arson, violence and did not disperse despite warning, the assembly was declared unlawful and Army was called out in Mandi town and curfew was imposed. The Government had appointed “Kainthla Commission” to enquire into the matter. The police and District Administration exercised all possible restraint against unlawful assembly of mob. The force was resorted to by the police after the assembly was declared unlawful strictly in accordance with law. It has been denied that respondent No. 3 used any fire arm or shot at any person. It has been admitted that some boys lost their lives in the firing incident. The receipt of notice under Section 80 CPC has not been denied. It has been alleged that Ajay Guleria might have sustained injuries in the mob violence arson for which appellants are not responsible. The appellants and respondent No. 3 ultimately denied the claim of respondents No. 1 and 2. On the pleadings of the parties, the following issues were framed: - 1. Whether the suit in question is not maintainable, as alleged in para 1 of the preliminary objection? OPD 1 to 3. 2. Whether the plaint is liable to be rejected for want of cause of action, as alleged? OPD 1 to 3. 3. Whether Shri Ajay Guleria died because of the negligent acts of the defendants in directing the firing on peaceful mob, as alleged? OPP. 4. To what amount of the damages the plaintiffs are entitled and if so from whom? OPP. …5… 5. Relief. 6. The learned Additional District Judge decreed the suit on 29.4.2000, as noticed above, hence the present appeal and in the appeal respondents No. 1 & 2 have filed cross objections. 7. I have heard Mr. A.K. Bansal, learned Additional Advocate General for the appellants and Mr. K.D. Sood, learned counsel for respondents No. 1 & 2/ cross objectors and gone through the record, none appeared for respondent No. 3. On behalf of the appellants, it has been submitted that learned Additional District Judge has not properly appreciated the evidence on record and has erred in decreeing the suit of respondents No. 1 & 2. At the time of alleged incident, the State was discharging its sovereign function and, therefore, the suit against the State and its officers is not maintainable. In any case, the learned Additional District Judge has awarded compensation on the higher side. The learned Additional Advocate General has prayed for setting aside the impugned judgement, decree and dismissal of the suit. Per contra, Mr. K.D. Sood, learned counsel for respondents No. 1 & 2/ cross objectors has submitted that learned Additional District Judge has rightly held that appellants are liable to pay compensation. He has submitted that not only the appellants but respondent No. 3 is also equally responsible for the unlawful acts and payment of damages to respondents No. 1 and 2 on account of death of Ajay Guleria. The learned counsel has submitted that respondents No. 1 and 2 are entitled to compensation as claimed in the suit. The learned Addl. District Judge has wrongly deducted Rs.1,50,000/- earlier paid to respondents No. 1 and 2 on …6… account of ex-gratia grant. The learned counsel for respondents No. 1 and 2/ cross-objectors while supporting the impugned judgement, decree, has made submissions for enhancement of compensation in favour of respondents No. 1 and 2. 8. The perusal of written statement of appellants reveals that unruly mob had committed acts of arson, looting and damage to the property. The force was used by District Administration and police only after assembly of people was declared unlawful in accordance with law and warning was given to the unlawful assembly. Later on Army was called out and curfew imposed in Mandi town. It has been admitted that four boys lost their lives in the firing incident. The appellants in their written statement have not specifically denied that Ajay Guleria had not died in firing incident. The appellants ultimately took the protection of sovereign immunity to defend their action. 9. PW 1 Hardev Singh has stated that at the time of incident, he was drawing Rs.2500/- salary as Physical Education Teacher, his wife was drawing Rs.1800/- per month salary, his son was merit holder in Matric and he wanted to become an engineer. He was a student of non-medical group in Maharaja Laxman Sen College. He was born on 17.4.1971 and died on 27.9.1990 in police firing. DIG of Police Prem Singh, who was in plain clothes himself fired and ordered other policemen to fire. After his son was hit by bullet, he was removed to hospital where he was declared dead. The police before firing did not issue any warning nor used tear gas or fired in the air. The police had also not used water canons or lathi charge. The assembly was not declared unlawful by anybody. The …7… police was equipped with weapons. On the orders of DIG, the police indiscriminately opened fire, four boys had died in the firing and many persons were injured. His son was not participating in any activity. The public was also peaceful, only the police was aggressive. The police did not record an FIR even though complaint was made to the police. His son wanted to become an engineer and would have earned Rs.5000/- salary. He would have contributed a lot to the family. He is suffering mental agony due to the death of his only son. In cross-examination, he has stated that DIG Prem Singh in his presence had not ordered firing or use of lathi charge. On that date, there was an agitation at Gandhi Chowk against Mandal Commission, in which Ramesh Rana committed self immolation. He had gone to the police station for lodging FIR. He has denied that his son was participating in the agitation and he participated in the acts of looting and setting on fire properties. He has admitted that government had given Rs.1,50,000/- ex-gratia grant on account of death of his son Ajay Guleria. 10. PW 2 Narain Singh has proved Ex. PW 2/A, statement dated 7.12.1998 of Principal, Maharaja Laxman Sen Memorial College, Sundernagar to the effect that Ajay Guleria was a student of plus two (Senior Secondary-II) of the College in non-medical stream in the session 1990-91. PW 3 Arvind Malhotra, brother of another deceased boy Karan Malhotra has stated that on 27.9.1990 as a protest against Mandal Commission Report, Ramesh Rana put himself on fire with the help of petrol/ oil, he suffered 80% burn injuries. The public wanted to see the District Administration. The police prevented the …8… public from entering the court premises. The public had turned restive. The assembly was not declared unlawful, suddenly the police had opened fire in all directions and four persons sustained bullet injuries. One Ajay Guleria sustained fire arm injury on his face. He picked up Ajay Guleria and had taken him to the District Hospital. Karan Malhotra had visited Bhut Nath temple. He thought as if he had sustained injury and cried. On this Prem Singh, Deputy Inspector General of Police, Mandi opened fire, which hit his younger brother. He was taken to hospital, where he died. In cross examination, he has denied that mob had indulged in firing, arson, brick bating and damage to public property. He has denied that the police had left with no alternative but to use fire arm for controlling the mob. He admitted that later on Army was called out by the District Administration. 11. PW 4 Dr. S.S.Guleria has stated that on 28.9.1990 at 11.00 a.m., he conducted post mortem on the dead body of Ajay Guleria and found that Ajay Guleria had died due to fire arm injury to brain stem leading to cardio respiratory failure and sudden death. Ex. PW 4/A is the post mortem report of Ajay Guleria. The post mortem report is duly signed by him and Dr. R.S.Chandel as also Dr. S.N. Mehta and Dr. B.L. Kapoor. PW 5 Naresh Kumar has supported the case of respondents No. 1 and 2. Kainthla Commission Report Ex. PXX was tendered in evidence. 12. DW 1 Desh Raj Sood, Dy. S.P., Sarkaghat has stated that he was working as Inspector/ SHO, Police Station, Mandi in the year 1990. Anti Mandal agitation had started in September 1990 at …9… Mandi. On 27.9.1990 Ramesh Rana set himself on fire with the help of oil/ petrol at 12.30 p.m. The District Administration had taken Ramesh Rana to District Hospital, Mandi. Thereafter crowd became restive and had indulged in brick bating. On 27.9.1990, the police and District Administration had given warning to the mob to stop mischief, tear gas was used to disperse the mob, but mob did not disperse. The police used cane charge. The mob had turned violent and started looting some shops. When these measures proved ineffective, the District Administration was compelled to order firing. The orders were issued by Rattan Singh, S.D.M. and Rajesh Kumar, A.D.M. 13. DW 2 Inder Singh, Clerk in the office of Deputy Commissioner, Mandi has placed on record order dated 27.9.1990 Ex. DW 2/A of Rattan Singh, S.D.M. In cross examination, he has stated that he does not know whether Rattan Singh issued any firing order. DW 3 Sarwan Kumar, Patwari, D.C. Office Mandi has proved on record that ex-gratia amount of Rs.1,50,000/- was paid to Hardev Singh vide Ex. DW 3/A and Ex. DW 3/B. The District Attorney had tendered in evidence FIRs Ex. DX-1 to Ex. DX-7. This is the entire evidence which has been led by the parties. 14. It is the case of appellants that mob before firing became restive and had started arson, looting etc. It is also the case of the appellants that before firing, warning was given to the mob to disperse, lathi charge, tear gas was also used but all proved ineffective. It has also been submitted on behalf of the appellants that assembly of the people was declared unlawful, order under Section …10… 144 Cr.P.C. was promulgated. DW 1 was the Station House Officer, Police Station, Mandi at the time of incident. He has given some version in his statement, but he has nowhere stated that he was present on the spot at the time of firing. In cross examination, he has stated that he was on duty at Mandi, but has not stated specifically that he was present at the place of firing. Ex. DX-1 to Ex. DX-7 are the copies of FIRs of different incidents, which took place on 27.9.1990 in between 1.15 p.m. to 3.00 p.m. in Mandi town. These FIRs have not been proved on record in accordance with law. These FIRs have been just placed on record in the statement of District Attorney. Ex. DW 2/A is the copy of order dated 27.9.1990 vide which Sub Divisional Magistrate, Mandi Sadar in exercise of powers under Section 144 Cr.P.C. ordered clamping of curfew within the limits of Mandi town from 7.00 p.m. on 27.9.1990 till further orders. The appellants have placed nothing on record to show that before firing any lawful authority declared assembly of persons at the place of firing unlawful nor any order of lawful authority has been placed on record for opening firing by the police on the said date. Ex. PXX is the copy of inquiry report of Kainthla Commission. It was tendered in evidence in the court below by the learned counsel for respondents No. 1 and 2. At the time of tendering of Ex. PXX in evidence, no objection was taken by the appellants and therefore, the objection of the appellants in this court that report Ex. PXX is not admissible in evidence because the author of the report has not been produced in the court to prove the report is not available to the appellants. The report Ex. PXX will be deemed to have been taken on record with the …11… approval of the appellants as no objection was taken by the appellants when report Ex. PXX was taken on record. In paragraph 4 of the written statement appellants themselves have referred “Kaithla Commission”,, therefore, appellants cannot object to the admissibility of Kainthla Commission report Ex. PXX. In paragraph- 71, the Commission in Ex. PXX, has concluded as follows:- “The conclusion that emerges from the facts and circumstances considered is that the District Administration and the police were taken by surprise by the self-immolation of late Shri Ramesh Rana and appears to have become panicky by the all round vandalism in the town. The police further got angered and provoked to retaliate to the stone bombardment made on them by the agitated boys. The police played the childish game of exchange of stone throwing with the boys. But the boys naturally being extra active in this monkey business were having upper hand but had to pay heavily with their lives and limbs. As noticed earlier, the particular situation obtaining in Seri and Chauhatta Bazars was not such which called for opening fire and that also on all sides and lanes in an indiscriminate manner. It could have been controlled with wielding of effective lathi charge and use of tear gas and also making some arrests of agitation leaders and a few miscreants. The pelting of stones by the mob of boys and others resulting in simple injuries to a dozen of policemen and the incidents of damage by breakage and burning caused in Chauhatta and Seri Sectors is not sufficient for the police to take resort to the extreme preventing step of firing on the mob taking the young lives of four budding boys and inflicting fire arm injuries to a score of them. The firing made was very excessive to meet the situation and in a manner not warranted by law. There was no need at all to do firing at sufficiently far away and residential areas from the places of trouble in Seri and Chauhatta.” 15. PW 4 Dr. S.S. Guleria has proved post mortem report Ex. PW 4/A of Ajay Guleria and opined that Ajay Guleria had …12… died due to fire arm injury to brain stem leading to cardio respiratory failure and sudden death. The case of respondents No. 1 and 2 in the plaint is that Ajay Guleria had died due to police firing on 27.9.1990. This fact has not been specifically denied by the appellants in their written statement. PW 1 and PW 2 by way of oral evidence have also proved that Ajay Guleria died due to police firing on 27.7.1990. The cumulative effect of oral and documentary evidence is that respondents No. 1 and 2 have proved that Ajay Guleria had died due to police firing on 27.9.1990. The appellants have failed to justify the police firing which caused the death of Ajay Guleria. No doubt, some evidence has come on record that on 27.9.1990 there was some unrest in Mandi town due to self immolation committed by Ramesh Rana in protest of Mandal Commission Report. However, the appellants have failed to prove that the situation was so bad that it could not have been dealt with by any mode other than the police firing. In any case, the appellants have failed to justify the police firing leading to the death of Ajay Guleria. The learned Additional District Judge has rightly appreciated the material on record in coming to the conclusion that police firing which caused death of Ajay Guleria was unjustified. 16. The learned counsel for respondents No. 1 and 2 has submitted that respondent No. 3 is responsible for causing death of Ajay Guleria due to firing. PW 1 has admitted that Prem Singh had not fired in his presence nor he ordered firing in his presence. PW 3 has, however, stated that Prem Singh, DIG had opened fire, which hit his younger brother. It appears PW 3 could not properly pin-point the …13… person who actually fired at his younger brother Ajay Guleria. Prem Singh, DIG happened to be in the vicinity and being the senior officer, therefore, PW 3 concluded that Ajay Guleria died due to the bullet injury fired by Prem Singh. It has not been proved on record that Prem Singh in fact was carrying any weapon on 27.9.1990 at the relevant time. It has been proved that Ajay Guleria died of bullet injury but the bullet which caused the death of Ajay Guleria was fired by Prem Singh has not been proved on record. In report Ex. PXX, the Commission has exonerated Prem Singh, DIG. The Commission has rather appreciated the work of Prem Singh, DIG in paragraphs No. 66 and 67 of the report. There is nothing on record to show that Ajay Guleria died of bullet injury fired by Prem Singh or the bullet which caused the death of Ajay Guleria was fired at the instance or instigation of Prem Singh, DIG. The learned Additional District Judge has rightly exonerated Prem Singh. 17. The learned Additional Advocate General has submitted that firing was resorted under compelling circumstances in order to protect public and private property and to control the unruly mob. The fire arms were used and the action of the police and administration was as per Rule 14.56 of the Punjab Police Rules, 1934 (for short, the Rules) as applicable in Himachal Pradesh. The relevant part of Rule 14.56 of the Rules is reproduced hereinbelow:- “(e) When the responsible police officer, whether acting under the orders of a magistrate or independently, considers that the use of firearms is necessary, he shall, unless circumstances make such action impossible, warn the crowd that if they do not immediately disperse, fire with live ammunition will be opened upon them. If the District Magistrate …14… or, in a sub-division, the sub-divisional officer is present, his orders shall invariably be obtained immediately the necessity of opening fire becomes imminent. If the senior police officer present is of non-gazetted rank, he shall at such stage obtain the orders of the senior magistrate present (other than an honorary Magistrate). (f) In order that the decision to open fire may be promptly acted upon without loss of control or confusion, the responsible police officer shall, as soon as it appears likely that the use of firearms will be necessary tell off a detachment of armed police to be held in readiness. When fire is to be opened, the responsible police officer shall decide the minimum volume necessary to be effective in the circumstances and shall give precise orders accordingly, as to the particular men or files who are to fire and the number of rounds to be fired; and whether volleys or independent aimed shots are to be fired, and shall ensure that his orders are not exceeded and that no firing contrary to or without orders takes place. Whatever volume of fire is ordered, it shall be applied with the maximum of effect; the aim shall be kept low and directed at the most threatening parts of the crowd; in no circumstances shall firing over the heads of or at the fringes of the crowd be allowed. Since buckshot is not an effective charge at any range at which it is safe to use it, Government has directed that the use of buckshot ammunition against crowds should be prohibited. (g) When no Magistrate is present, the police officer in command, as is contemplated in the