IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.F.A No. 92 of 2001 with Cross-objection No. 93 of 2001. Judgement reserved on: 18.6.2008 Date of decision: 29.8.2008. State of H.P. and anr. ….. Appellants. Vs. K.L.Malhotra and 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 with Mr. Sanjeev Sood, Advocates, for respondents No. 1 & 2. Kuldip Singh, Judge. This judgement shall dispose of RFA No. 92 of 2001 and Cross Objection No. 93 of 2001 arising out of judgement, decree dated 29.4.2000 passed by learned Additional District Judge, Mandi in Civil Suit No. 7/98(92), decreeing the suit of respondents No. 1, 2 against appellants for Rs.2,40,000/- inclusive of Rs.1,50,000/- ex- gratia grant alongwith interest at the rate of 12% per annum, from 10.1.1992. 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. Karan Malhotra son of respondents No. 1, 2 had seen his brother Arvind Malhotra with Ajay Guleria on scooter who was shot by respondent No. 3, Karan Malhotra thought that his brother Arvind Malhotra had also sustained injuries. It has been alleged that respondent No. 3, who was DIG police had ordered firing, as a result of which Karan Malhotra suffered injuries and fell down on the entrance door of Bhut Nath temple. He was taken to District Hospital, Mandi, where he was declared dead. 3. The further case of respondent No. 1 and 2 is that firing was ordered without any provocation with an intention to kill Karan Malhotra. The police did not record the FIR despite many efforts and persuasion on behalf of the father of deceased and local residents of Mandi town. The respondent No. 1 later on filed a criminal complaint under Section 302 IPC against respondent No. 3 before the learned Chief Judicial Magistrate, Mandi. …3… 4. It has also been alleged that many persons received injuries at the hands of police. There was no restriction for assembly of persons, no resort was made to lathi charge nor any warning was given for dispersal nor assembly was declared unlawful. The people had not taken 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. 5. It has been alleged that Karan Malhotra was born on 15.1.1976 and studying in 9th Class in Mandi Public School in the year 1990, earlier he was a student of St. Stephens School and D.A.V. Public School, Chandigarh. He was very brilliant and preparing for National Defence Academy. He would have received an average Rs.5000/- per month salary and contributed a lot to the family. The respondents No. 1 and 2 due to the death of Karan Malhotra in terms of money have suffered a loss of Rs.10,55,000/-. A notice under Section 80 CPC dated 7.3.1991 was issued to appellants and respondent No. 3. The respondents No. 1, 2 ultimately confined their claim to Rs.5,00,000/- and filed a suit. 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. 6. 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 on the ground of sovereign immunity. The …4… 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 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 had exercised all possible restraint against unlawful assembly of mob. The force was resorted to by police and District Administration after 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 Karan Malhotra 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 view of the allegations made, is not maintainable, as alleged in paras 1 and 3 of the preliminary objections in written statement of defendants No. 1 to 3. O.P. Defendants. 2. Whether there is no cause of action and the plaint is liable to be rejected under order 7 Rule 11 CPC. O.P. Defendants. …5… 3. Whether Karan Malhotra, since deceased, died on account of defendant No. 3 having ordered the firing through his subordinates (Firing Squad) as alleged in para-5 of the plaint? O.P.P. 4. In case issue No. 3 is decided in the affirmative to what compensation and from whom the plaintiffs are entitled to? O.P.P. 5. Relief. 7. 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. 8. 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 excess compensation. 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 …6… 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 Karan Malhotra. 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 account of ex-gratia grant. The learned counsel for respondents No. 1 and 2/ cross-objectors while supporting the impugned judgement, decree, has made submission for enhancement of compensation in favour of respondents No. 1 and 2. 9. 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 Karan Malhotra had not died in firing incident. The appellants ultimately took the protection of sovereign immunity to defend their action. 10. PW 1 K.L. Malhotra has stated that Karan Malhotra was born on 15.1.1976 and he died in police firing on 27.9.1990. The police or the Magistrate before firing did not give any warning. The gathering of the people was not declared unlawful by any authority. …7… Karan Malhotra his son had told him in the hospital that police indiscriminately fired in all directions in Bhut Nath, Chanderlok streets. The firing was also done towards post office and Tarna. In this firing four boys were killed and his son also died in the hospital due to bullet injury. The people were peaceful at the time of incident. The police was aggressive. The police action was malafide. The State is responsible for the acts of police. In cross examination he has stated that Karan Malhotra was 14 years of age and was studying in Mandi public school in 9th class. The police before firing did not use lathi charge. DIG Prem Singh did not issue firing order in his presence. The incident took place after 2.00 or 2.30 p.m. Karan Malhotra died in the hospital in his presence. He has admitted that State had paid Rs.1.50,000/- ex-gratia on account of death of his son Karan Malhotra. 11. PW 2 G.D.Sharma has proved certificate dated 17.6.1992 Ex. PW 2/A issued by Principal, Mandi Public School, Mandi that Karan Malhotra had been student of 9th Class in Mandi Public School. PW 3 Arvind Malhotra, brother of deceased 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 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 …8… 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 the 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. 12. PW 4 Dr. S.S.Guleria has stated that on 28.9.1990 at 12.00 a.m., he conducted post mortem of Karan Malhotra and found the death of Karan Malhotra due to hemorrhage shock resulting from injury to femoral vessels caused by fire arm, Ex. PW 4/B is the post mortem report of Karan Malhotra duly signed by him and Dr.R.S.Chandel as well as 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. 13. 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 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 …9… 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. 14. 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 ha 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 Kasturi Lal Malhotra vide Ex. DW 3/C. The District Attorney has tendered in evidence FIRs Ex. DX-1 to Ex. DX-7. This is the entire evidence which has been led by the parties. 15. 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 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 …10… 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 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 “Kainthla Commission”, therefore, appellants cannot object to the admissibility …11… 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.” 16. PW 4 Dr. S.S. Guleria has proved post mortem report Ex. PW 4/B of Karan Malhotra and opined that Karan Malhotra had died due to fire arm injury. The case of respondents No. 1 and 2 in the plaint is that Karan Malhotra 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 …12… evidence have also proved that Karan Malhotra 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 Karan Malhotra had died due to police firing on 27.9.1990. The appellants have failed to justify the police firing which caused the death of Karan Malhotra. 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 Karan Malhotra. The learned Additional District Judge has rightly appreciated the material on record in coming to the conclusion that police firing which caused death of Karan Malhotra was unjustified. 17. The learned counsel for respondents No. 1 and 2 has submitted that respondent No. 3 is responsible for causing death of Karan Malhotra 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 person who actually fired at his younger brother Karan Malhotra. Prem Singh, DIG happened to be in the vicinity and being the senior officer, therefore, PW 3 concluded that Karan Malhotra 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 …13… on 27.9.1990 at the relevant time. It has been proved that Karan Malhotra died of bullet injury but the bullet which caused the death of Karan Malhotra 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 Karan Malhotra died of bullet injury fired by Prem Singh or the bullet which caused the death of Karan Malhotra was fired at the instance or instigation of Prem Singh, DIG. The learned Additional District Judge has rightly exonerated Prem Singh. 18. The learned Additional Advocate General has submitted that firing was resorted under compelling circumstances in to protect public and private property and to control the unruly mob. The fire arms were used and such 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 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). …14… (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 Criminal Procedure Code, shall be responsible for the opening of fire. Invariably, whether the order to use firearms has been given by a magistrate, or by a police officer, the order to cease fire shall be given as soon as the unlawful assembly shows a disposition to retire or disperse. (h) While the disposition of the police must be left to the police officer in command, every precaution should be taken that a force armed with firearms is not brought so close to a dangerous crowd, as to risk its either being overwhelmed by numbers or being forced to inflict heavy casualties. If the use of firearms cannot be avoiden, firing should be carried out from a distance sufficient to obviate the risk of