Monday, March 27, 2006

Magermal Bagh firing

Delhi HC’s verdict on Magermal Bagh firing
Exonerates CRPF personnel, says they deserve award not punishment

NASEER A GANAI
Srinagar, Mar 27: Exonerating four Central Reserve Police Force (CRPF) personnel who were indicted by the then Inspector General of CRPF for “resorting to indiscriminate firing causing heavy casualties to the civilians” on January 19, 1991 at Magermal Bagh Srinagar, the Delhi High Court has revoked dismissal order issued by IGP terming it as “non application of mind on the part.” 
The Court directed reinstatement of CRPF personnel with all consequential benefits. 
The Division Bench of Delhi High Court comprising Justice Mukul Mudgal, Justice H.R Malhotra passed the judgment on a writ petition WP 2759 in case K.G Gopi and others versus Union of India and others and described the CRPF personnel deserve award not punishment. 
Case History 
The petitioners have said that on January 19, 1991 while returning in their vehicles after collection of the dak, “ they were ambushed by militants who threw bombs on the petitioners and also fired heavily by using AK 47 rifles. In reaction to the attack petitioners resorted to firing.” 
In the incident 11 persons including two women were killed and 23 others were injured. Some of them later succumbed to injuries. 
The CRPF authorities however felt that the CRPF personnel resorted to indiscriminate and excessive firing and on September 1991, through office memo authorities informed eight CRPF personnel that the departmental inquiry would be initiated against them for “committing an act of gross misconduct.” 
Charge sheet 
The charge produced against them on September 28, 1991 reads, “All the eight delinquents were posted/attached with HQ/Coy. 42 Bn CRPF for duties. On January 19, 1991 they were detailed as escort party of two dak collection vehicles Regn. No.DBL-68231 CRPF No.18-Cheton and DBP 8167/Minibus of the unit. These vehicles used to go daily to APO for dispatch/collection of dak. When on January 19, 1991 these two dak collection vehicles were returning after completion of the duty some unidentified militants attacked these vehicles throwing a bomb followed by firing from automatic weapons in Magarmal Bagh area Srinagar at about 1415 hrs. The aforesaid personnel to counter the militants firing on them, instead of judiciously replying to militants fire resorted to indiscriminate and excessive firing from their weapons issued to them for duty from running vehicles over a stretch of about 1 KM on the main road (Silk factory Road) passing through Magarmal area. The action of each of them in this incident was therefore, prejudicial to good order and discipline of the force and thereby each of them committed an act of gross misconduct as a member of the force U/s 11 (1) of C.R.P.F. Act, 1949.” 
Inquiry report 
The inquiry officer submitted his report on December 14, 1991 holding that charges framed against the petitioners were not proved. The report reads: “All eight delinquents travelling in one ton (Tata 610) truck and one minibus on bonafide government duty on January 19, 1991, had resorted to firing from their respective weapons in retaliation to militant attack on their vehicles with bomb and firing from automatic weapons like AK-47 assault rifles in area Saraibala Lane Crossing at about 1415 hours on January 19, 1991 and in self-defense against the said attack so that they could come out of the area safely with vehicles and their own lives. As natural to human being retaliatory firing done by each of the delinquents was different from that done by the other, as degree of reaction to a situation/incident by each individual differs. None of the delinquents had opened firing at his own but did so only after attack by militants. While four of the delinquents fired less number of rounds, remaining four fired more than 20 round. Each, depending on the reaction under their prevailing situation, by each of the delinquents. 
The term used in the article of charge that the delinquents had resorted to “Indiscriminate” and “excessive” firing are relative in nature. The retaliation by each individual to militants attack was bound to be different depending on nature of the individual concerned, his inability of judgment and assessment of a particular situation that prevails at a particular point of time and under a particular sequence of events and condition, coupled with the sense of self preservation of each individual.” Thus, he exonerated all the CRPF personnel. 
Disciplinary Authority 
However, the Disciplinary Authority over ruled the departmental enquiry and found the “four petitioners guilty of having fired indiscriminately which was not necessary in the context of the situation prevailing at that time.” 
The Disciplinary Authority report reads: “Firing by the militants had not caused any damage to the personnel as well as the vehicles in which these personnel were travelling and firing of 20 rounds or more by the delinquents in self defence is certainly excessive and indiscriminate. It is more so because they fired such large number of rounds without aiming at the militants who could not be spotted since the militants were firing from the houses in the area. 
It is of course not possible to ascertain if firing by the escort personnel had caused any death/injury to the civilians since the firing by escort personnel was without aim and from lying position on the body of the vehicles and firing was going on from all the directions by the militants as well as other security personnel deployed on the ground and moving in vehicles. Considering all aspects of the situation these personnel ought to have exercised restraint and controlled fire in self-defence. I, therefore, find all the above four persons guilty for resorting to excessive and indiscriminate firing thereby committing an act of misconduct as members of the Force U/s 11 (1) of C.R.P.F. Act, 1949.” 
The petitioners after undergoing the punishment awarded to them by the Disciplinary Authority were transferred to Assam from Srinagar. 
IGP’s action 
But on July 6, 1992, the Inspector General of Police, Southern Sector Hyderabad D.R Kartikeyan issued show cause notice to them that their punishment would be enhanced to “that of dismissal from service.” The IGP, however, gave them an opportunity to submit their written representation if any against the award of proposed punishment within 15 days. 
After examining the replies submitted by the petitioners, the IGP on July 29, 1992 the IGP suo motto passed an order holding petitioners guilty of indiscriminate and excessive firing “causing heavy casualties to the civilians.” And dismissed them from their service. 
The petitioners challenged the order in the Delhi High Court through a petition WP 2759/1994. 
Judgment 
After hearing the arguments the Court gave judgment on February 1, 2006. The Court said: 
“Infliction of punishment is normally the domain of the disciplinary authority or its higher authorities in the armed forces or in para military forces. The Courts ordinarily would not interfere unless circumstances so warrant the interference by way of judicial review as imperative. This is one such case where the conscience of the Court has been shocked. The petitioners who were soldiers in the CRPF showed exemplary courage as is evident from the report of the enquiry officer who had occasion to examine the witnesses who had actually witnessed the militants attack and retaliation by the petitioners. As noticed, the militants had laid ambush on a large scale. There was a bomb attack followed by firing from AK 47 rifles by the militants. The petitioners retorted swiftly and if the petitioners had not retorted at the appropriate time it could have turned into an ugly and bloody situation. It is not a case where the petitioners were found guilty of dereliction of duty. It is a case where according to the respondent they should have exercised restraint and should not have resorted to exercise firing. A bare reading of the evidence of the departmental enquiry where number of witnesses were examined leads us to an inescapable conclusion that far from being punished, the petitioners deserve to be rewarded.” 
The Court held the petitioners, who without caring for their lives, managed to thwart the militant’s attack which attack was quite severe in nature. Many lives could have been lost if the militants had not been dealt with in the manner they were dealt with by the petitioners. This Court after having appraised the evidence of the witnesses finds that the militants who suddenly started firing from their hidden positions not only with bombs but with A.K. 47 rifles, were rightly dealt with by the petitioners. The disciplinary authorities perhaps seems to have swayed away by the number of rounds used by these petitioners. This is clear from the fact that some of the co-delinquents who fired 8 rounds & 2 rounds were exonerated as their response was found commensurate with the provocation occasioned by the militants’ attack. However, the petitioner who fired 28,35,29 and 20 rounds respectively were dismissed. In our view both the disciplinary authorities and the I.G.P. purportedly exercising his powers under Rule 29 (d) of the CRPF rules, 1955 have been unnecessarily swayed by the number of rounds fired in face of an ambush by the militants. 
“The counsel for the respondent even in this court was unable to show to us anything in the past record of the petitioners which warranted dismissal straightway. This is another factor which demonstrates the casual approach of the IGP. Such orders are likely to affect the confidence of the security forces and are likely to make their responses in a critical situation rather timid. We are satisfied that the order of the enquiry officer and at best the disciplinary authority did not warrant interference. In any event the punishment is grossly disproportionate to the alleged offence. We, therefore, set aside the impugned order resulting in allowing the writ petition with no order as to costs and direct the reinstatement of the petitioners with all consequential benefits payable within six weeks and in any case not later than 15th March 2006,” the Court directed. 

Those whose death is ‘award’ for CRPF men 
Hassina daughter of Muhammad Yousuf Narakara Budgam, Ali Muhammad son of Ghulam Muhammad Lal Mandi (boatman), Abdul Khaliq Dar son of Ghulam Muhammad Dar Chararisharief, Muhammad Jabbar son of Abdul Gaffar Wanpo Khanda, Fahem Alam son of Isreal Alam, Muhammad Ashraf son of Gulam Muhammad Solina; Fazi wife of Muhammad Khan of Budgam; Bilal Ahmad Hajam son of Ghulam Ahmad Hajam, Sairibala, Fazail Maqbool son of Muhammad Maqbool of Magarmal Bagh, Habibullah son of Bismillah of Chadora.