J&K HC Dismisses PIL Against Use Of Pellet Guns

Section 18 of Public Safety Act Unconstitutional after scrapping of Article 370; HC seeks govt response

In present case, the public interest litigation has been filed by Jammu and Kashmir High Court Bar Association, Srinagar, through its Executive Member, Mr. Muhammad Ashraf Bhat, against use of pellet guns. The division bench of Jammu and Kashmir High court consisting Justice Ali Mohammad Magrey and Justice Dhiraj Singh Thakur, pronounced the decision in the case of J&K High Court Bar Association  v.  Union of India & ors, dismissing the petition.

Background:

The petition[1] was filed by the Jammu and Kashmir High Court Bar Association, Srinagar, through its Executive Member, Mr. Muhammad Ashraf Bhat, in July 2016 with the following prayers:

“a) That the respondents, their agents and servants to be prohibited by a writ of prohibition from using or caused to be used 12-Bore Pellet Gun and or of any other Bore and Cartridges containing pellets as a means of crowd control against any group of people, including protestors in the State of Jammu and Kashmir. The use of pellet gun to be totally banned as a means of crowd control.

b) That all the officers, who took the decision of using the pellet gun at the protestors and non-protestors after 8th July, 2016 and those who actually fired the pellet guns to be prosecuted. Cases to be directed and registered against them for causing unlawful bodily injury, deprivation of eye sight etc.

c) That the respondents, their agents and servants be directed to compensate all those persons whose names are mentioned in the petition as well as those whose particulars will come to the notice of this Hon’ble Court during the hearing of this petition and the compensation be determined in the context of violation of Article 21 of the Constitution as made applicable to the State of Jammu and Kashmir, as these persons have either been deprived of their eye sight and or have suffered bodily injury, trauma, agony, mental pain etc.;

d) That the Director, SKIMS, Soura, Srinagar, Principal, SKIMS, Medical College, Bemina; Director, Health Services, Kashmir, and the Medical Superintendent, SMHS Hospital be directed to furnish to this Hon’ble Court details of all those persons who reported to the SKIMS, Hospitals, District Hospitals, Sub District Hospitals, Primary Health Centres for treatment on account of pellet injury and the treatment provided to them.

e) That the State of Jammu and Kashmir through Chief Secretary to be directed to furnish report to this Hon’ble Court as to record the circumstances and when the (time) decision to refer pellet injury patients outside the State was taken. The respondents to be directed to bring competent and well trained surgeons from outside the State so as to provide treatment to those who are not willing to go outside for treatment or have no means for meeting the expenses of such treatment inside or outside the State. The Court may also determine negligence, if any, caused by any authority of the State in dealing with pellet injury patients.

f) Any other appropriate writ direction or order as the Hon’ble Court may deem fit in the facts and circumstances of the case be also passed in favour of the petitioner and against the respondents.”[2]

Brief facts:

The writ petition has been filed after unpleasant event which occurred from 08.07.2016, wherein, according to the petitioner association, people, including teenagers, watching clashes between protestors and security forces, had received pellet injuries in their eyes, skulls and throats. It was alleged that about 4000 persons were injured and about 100 persons were blinded. The petitioner has referred to various provisions of the Code of Criminal Procedure and other procedures to be adopted for dealing with and dispersal of assemblies. The petitioner association, professedly, espousing a public interest, has filed this petition with the above prayers.

When this petition first came up for consideration on 02.08.2016, the learned Advocate General and the learned ASGI took notices in the open Court. After which respondent filed their respective response, the Division Bench of this court, of which Justice Magrey was member, passed on 21.9.2016. The court further made reference to paragraphs 17 to 30 of the said order, which are as follows:

It is not in dispute that from 08.07.2016 many parts of the valley are facing law and order problems for one reason or the other. The petitioner is claiming that there is Human Rights violation. If the protest is not peaceful and the Security persons are attacked by a huge and violent mob they have to necessarily use force as their self defence and for protecting public property. Hon’ble the Supreme Court in the decision reported in 2016 (7) SCALE 725 (Anita Thakur and ors v. Government of J&K and ors) (judgment dated 12.08.2016) pointed out the present situation in Kashmir in the following manner in para 12, which reads thus:

‘12… Recent happenings show an unfortunate trend where such demonstrations and protests are on increase. … In Kashmir itself there have been numerous instances where separatist groups have provoked violence. In this scenario, task of the police and law enforcing agencies becomes more difficult and delicate. In curbing such violence or dispersing unlawful assemblies, police has to accomplish its task with utmost care, deftness and precision.’

The concerned respondents are directed to ensure that all injured persons are extended adequate medical treatment for whatever injury they sustain and provide all possible required medical treatment to the injured by specialists and if specialists are not available in the State, appropriate arrangement has to be made to treat the patients by inviting specialists in the State or to shift the patients to hospitals outside the State wherever specialists are available.”

Decision of the court:

The division bench of Jammu and Kashmir High court consisting Justice Ali Mohammad Magrey and Justice Dhiraj Singh Thakur, pronounced decision in the case of J&K High Court Bar Association v. Union of India &ors. on 11.03.2020. The court held that, so far as the first and the second prayers made in the petition are concerned, the Court has already recorded a finding in its order dated 21.09.2016, particularly in paras 22 to 27 thereof and in regard  with  the fourth and the fifth prayers made in the petition, the concerned Hospital authorities have filed their respective responses to the petition, detailing out the number and the particulars of the injured persons who had reported at their respective Hospitals during the period in question, the nature of injuries received by them, the treatment provided to them and the procedures, wherever necessary, conducted on them. The court further held that since medical treatment has duly been extended to all the injured persons, some of whom have been referred to other Hospitals in the country as well, and Special Doctors have also been called from outside the State for treatment and conduct surgeries of some other patients, nothing more needs to be done as regards prayers (iv) and (v) made in the petition. It further held that so far as the constitutional tort is concerned, the State has fulfilled its obligation, inasmuch as they have made ex-gratia payments to most of the injured persons as mentioned above, and with respect to the remaining it is categorically stated that their cases shall be decided in tune with the Government policy in that behalf in due course of time. Thus the petition was dismissed accordingly. [3]

Edited by Pragash Boopal

Approved & Published – Sakshi Raje

Reference

[1] WP(C) (PIL) no.14/2016

[2] https://drive.google.com/viewerng/viewer?url=https://www.livelaw.in/pdf_upload/pdf_upload-371161.pdf

[3] https://www.livelaw.in/news-updates/jk-hc-dismisses-pil-against-pellet-guns-153757

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