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2018 Supreme(Gau) 1590
IN THE HIGH COURT OF GAUHATI, KOHIMA BENCH
Kalyan Rai Surana, J.
Union of India and Ors. – Appellants
Vs.
State of Nagaland and Ors. – Respondents
WP(C) No. 129 (K) of 2017
Decided On : 15-10-2018
For the Appellant :Yangerwati, CGC and Z. Kulnu, Advocate
For the Respondent:P. Choudhury, Advocate and K. Wotsa, Sr. GA
Headnote:
Constitution of India, 1950 - Articles 21 and 131 - Commission of Inquiry Act, 1952 - Sections 3 and 2 - Armed forces Act, 1958 - Sections 3 and 6 – Firing – Death – Injury - Case projected in writ petition is that petitioners have filed present writ petition challenging inter-alia competence and jurisdiction of State Government to appoint Firing Incident Inquiry Commission in purported exercise of powers for purpose of making an inquiry as to cause of death of two minor children and injury to one woman persons responsible for firing and whether it could have been avoided - Jurisdiction of Commission to issue warrant of arrest vide order to compel witnesses to depose before Commission is also challenged - In writ petition it is projected that in night Armed Forces Special Force had launched a special operation in general area of Village - On receipt of inputs from various sources about presence of suspected NSCN who were planning to ambush Security Forces - Exchange of fire with NSCN cadres took place in which two NSCN cadres were killed and one possibly injured - After taking due clearance from Villagers of two parties were returning back with bodies of two dead NSCN cadres - Held, It is submitted that no penal consequences were contemplated - However only a report prepared under inquiry would be send to Government of Nagaland - It is submitted that Public Order (but not use of naval military and air force or any other armed force of Union or of any other force to control of Union or of any contingent unit thereof in aid of civil power) which is a State subject - Moreover it is submitted that there are two FIRs inter-alia containing different versions of same firing incident which had resulted in death of two Class VII students and gunshot injury to one woman - It is submitted that while army personnel had fired rounds of bullets no other bullets were found at site - Hence it was within competence of Government of Nagaland to constitute a fact finding inquiry - It is submitted that death of two minor children and gunshot injury to a lady is definitely having civil consequences for State Government as such present writ petition was misconceived and not maintainable - It is submitted that Union of India does not have any fundamental rights - Order Accordingly.
Kalyan Rai Surana, J.
1. Heard Mr. Yangerwati, the learned CGC, assisted by Mr. Z. Kulnu, the learned Counsel. Also heard Mr. P. Choudhury, the learned Special Counsel, along with Mr. K. Wotsa, the learned Senior Govt. Advocate for the State of Nagaland.
2. The matter was heard in part on 9.10.18 and 11.10.2018 and the argument was concluded today.
3. Five writ petitioners herein have jointly filed this writ petition. The petitioners are (1) The Union of India, through its Secretary, Ministry of Home Affairs, New Delhi, (2) General Office Commanding, 3 Corps, C/o. 99 APO, (3) Inspector General of Assam Rifles, (North), C/o. 99 APO, (4) The Commanding Officer, 46, Assam Rifles, C/o. 99 APO, (5) The Commanding Officer, 12 PARA (SF), C/o. 99 APO. The respondents herein are (1) The State of Nagaland, Represented by its Chief Secretary, Govt. of Nagaland, (2) The Special Secretary to the Govt. of Nagaland, Home Department, Nagaland, Kohima, (3) The Judicial Inquiry Commission (Regarding Wuzu Firing Incident), Represented by the Chairman, Camp: Circuit House, Opp. Ancient Rajbari, Dimapur, Nagaland, (4) The Commissioner of Police, Dimapur, Nagaland.
4. In the writ petition, the petitioners have prayed for the following reliefs:-
(a). To quash and set aside the Notifications No. CON/LOR- 3/2015 dated 10 August, 2015 (Annexure-A-5), No. CON/LOR- 3/2012 dated 13 November, 2015 (Annexure-A-7) and subsequent orders No. JIC-WFI/OR/2016/025 and 26 dated 20th April and 21st April, 2017 (Annexure-13) directing for issuance of bailable warrant along with the Warrant of Arrest dated 24.05.2017.
(b). Why any other appropriate writ/order or direction should not be issued to give complete justice to the petitioners and to give effect to safeguard the lives and personal liberty of the personnel of the Assam Rifles Battalion and Armed Forces Special Force guaranteed under Article 21 of the Constitution of India and upon cause or causes being shown and on hearing the parties to make the Rule absolute and or pass any other order or orders as your Lordships may deem fit and proper.
And in the interim pending disposal of the writ petition, the Hon'ble Court may be further pleased to stay the operation of the impugned notification dated 10th August, 2015 and subsequent notification No. CON/LOR- 3/2012 dated 13th November, 2015 and order of arrest warrants all dated 24th April, 2017.
5. The case projected in the writ petition is that the petitioners have filed the present writ petition challenging, inter-alia, the competence and jurisdiction of the State Government to appoint Wuzu Firing Incident Inquiry Commission in purported exercise of powers under the Commission of Inquiry Act, 1952 for the purpose of making an inquiry as to the (i) cause of death of 2 (two) minor children and injury to 1 (one) woman, (ii) persons responsible for the firing, (iii) and whether it could have been avoided. The jurisdiction of the Commission to issue warrant of arrest vide order dated 24th April, 2017 to compel the witnesses to depose before the Commission is also challenged.
6. In the writ petition, it is projected that in the night of 13th July, 2015 the Armed Forces Special Force had launched a special operation in general area of Village - Avangkhu on receipt of inputs from various sources about presence of suspected NSCN(K), who were planning to ambush Security Forces. On 16th July, 2015, at approx. 0030 hours, exchange of fire with NSCN(K) cadres took place in which 2 (two) NSCN(K) cadres were killed and one possibly injured. The Officer-in-charge of the Armed Forces Special Force had also sustained gunshot wounds. A party of Assam Rifles was moved at about 1015 hours on 16th July, 2015 for de-induction of the party which had eliminated NSCN(K) cadres. After taking due clearance from the Villagers of Avangkhu, the two parties were returning back to Melluri with bodies of the two dead NSCN(K) cadres. On reaching Pokhungri, the injured Officer-in-charge of the colu
