Holding

The Supreme Court held that the Allahabad High Court’s directions for massive compensation, fund allocation, and pre‑emptive orders on sanction, charge‑sheet composition, jurisdiction and venue were unsustainable and therefore set aside the judgment.

Summary

The Supreme Court examined the Allahabad High Court’s extensive directions issued in the wake of the 1994 Uttarakhand agitation, which ordered massive compensation to victims, large fund allocations for regional development, and pre‑emptive rulings on the need for sanction under Section 197 of the CrPC, the composition of charge‑sheets, jurisdiction and venue of trials, and the establishment of special courts. The Court held that such directions were premature, made without a trial or consideration of evidence, and ignored the financial capacity and legislative mandates of the State. It ruled that the question of sanction under Section 197 must be decided by the Sessions Judge after the accused raises it, and that the inclusion of offences in a charge‑sheet is governed by Section 228 of the CrPC. The High Court also cannot pre‑emptively determine jurisdiction or order the creation of special courts. Consequently, the Supreme Court set aside the High Court’s judgment as unsustainable. The appeal was allowed and the High Court order was vacated.

Issues considered

Whether a High Court may direct payment of compensation and fund allocation for victims of a public disturbance without a trial and without assessing the State’s financial capacity.
Whether sanction under Section 197 of the Criminal Procedure Code is required for prosecuting government officials and whether such a question can be decided in a writ petition.
Whether the High Court can determine at the writ stage which offences may be included in a charge‑sheet under Section 228 of the CrPC.
Whether the High Court may pre‑emptively decide the jurisdiction and venue of trials for offences arising from the agitation.
Whether the High Court can order the establishment of special courts for the trial of such offences.

Legislation cited

Code of Criminal Procedure, 1973s. 197, s. 228
Constitution of Indias. Article 226
Indian Penal Code, 1860s. 109, s. 120-B, s. 302, s. 304, s. 341, s. 342

Subjects

CompensationArticle 226Criminal Procedure CodeSection 197Section 228jurisdictionspecial courtsstate liabilityhuman rightsUttarakhand agitation

Judgment

A A.K. SINGH AND ORS.
v.
UTTARAKHAND JAN MORCHA AND ORS.

MAY 13, 1999

B [K.T. THOMAS, D.P. MOHAPATRA AND U.C. BANERJEE, JJ.]

Constitution of India, 1950-Article 226-Compensation-Quantum
of-High Court issued directions to the State Government to pay compensation
to the victims of Uttarakhand violence and to make fund allotments amounting
C to crores ofrupees for development of the affected regions-Directions issued
at a pre-mature stage without trial, without considering the evidence-
Jssued without having regard to the financial capacity. of the State
Government, its resources and legislative mandates involving state funding-
Such directions resulted in massive financial burden on the state-Held,
D such directions for payment of compensation is unsustainable.

Power of High Court-To issue directions relating to sanction for
prosecuting the government officials-Framing of charges-Jurisdiction of
court-On facts, the High Court went into the question of sanction for
prosecution of the Government officials involved in the offences and the
'E offences to be included in the charges framed at the pre-mature stage-Court
issued directions regarding the jurisdiction of the court and the venue of the
trial-Held, issuance of such direction not justified-Criminal Procedure
Code, Sections 197 and 228.

This was a stir to press the demand for a separate State ofUttarakhand
F comprising certain hilly regions of the state of Uttar Pradesh and some
other areas. The stir collected momentum when state government issued
notification pertaining to reservation in educational institutions based on
region-wise domicile. A public rally was organized for protesting against
the notification and to press the demand for separate state. The administration
G took stern measures to resist the protesters' march towards the National
Capital as the proposed rallysts where carrying lethal weapons. Confrontation
ensued which had resulted in lot of blood-shed including loss of many lives,
infliction of injuries on persons belonging to both sides, outraging the
modesty of women ranging to ravishments.

H Then, an association styled as Uttarakhand Sangharsh Samity filed a
624
A.K. SINGH v. UTT ARAKHAND JAN MORCHA 625

writ petition for directions to be issued to the authorities to meet the A
consequences of the said confrontation. Division Bench issued interim
directions to Central Bureau of Investigation to enquire into allegations
of "human rights violations." After investigation CBI framed charge-
sheet against certain officers under Sections 109, 120-B read with Section
341and342 of the Indian Penal Code. Sanction of the State Government was B
obtained for launching prosecution in respect of those offences. Some of the
accused who were arrayed in the said charge-sheet filed writ petitions
challenging the validity of the sanction order issued by the State Government
for prosecuting them.

The Division Bench disposed of the petition filed by the samiti C
issuing several directions. The court without trial and without considering
the evidence directed the State Government to pay huge compensation
to the victims of the Uttarakhand violence and to make fund allotments
amounting to several crores of rupees for development of the affected
regions. It further held that no sanction of the government is required
under section 197 of Criminal Procedure Code for prosecuting the officials D
for any offences committed by them while resisting the rallyists. It also
issued directions regarding the venue of trial of different cases. Aggrieved
by the High Court's order the appellants preferred the present appeal.

Allowing the appeals, this Court
E
HELD : 1.1. High Court is not justified in fixing up huge sum as
compensation for the victims of Uttarakhand violence at a premature
stage without trial and without considering the evidence. It did not take
into account the financial capacity of the State Government, its resources
for making up the said amount, the priorities to be honoured by the
State Government and the legislative mandates involving State funding F
while ordering the Government to incur such huge expenditure. Thus,
there is no justification for using judicial power for imposing such
unbearable burden on the State which in turn would be compelled to
extract money out of common man's coffers to meet such massive financial
burden. [629-F; 630-H; 631-D-E) G
1.2. The High ·Court should not have embarked upon a discussion
regarding sanction order for prosecuting government officials involved
in the offences at a premature stage. The question of necessity of sanction
need to be considered by the Sessions Judge if and when raised by the
accused and has to be decided after taking into account various H
626 SUPREME COURT REPORTS [1999] 3 S.C.R.

A considerations including the factual situation in each case. (633-BI

1.3. The question as to what offences can be included in the chargesheet
can be raised at the appropriate stage. It has to be <lorie by the Sessions
Judges concerned after hearing both sides, as provided under Section 228
of the Code of Criminal Procedure. f632-H)
B
1.4. The jurisdiction of the Court can be decided on the factual foundation
in each case. The High Court should not have pre-empted the court/special
courts before which each case would come up in the normal course, to
determine the question of jurisdiction, if it is raised ~y any of the parties.
f633-FJ
c
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3027 of
1999 Etc. Etc.

From the Judgment and Order dated 9.2.96 of the Allahabad High Court
in C.M.W.P. No. 39920of1995.
D
D.D. Thakur, Satish Chandra, A.S. Nambiar, A.M. Khanwilkar, Vishwajit
Singh, A.P. Mayee, Rajnish, K. Swami, Dhruv Mehta, S.K. Mehta, Fazlin
Anam. Ms. Shobha, Pramod Swarup, Ms. Prema Swamp, A.S. Pundir, (M.C.
Dhingra) (NP), N.S. Bisht, Sudhir Kumar Sajwa, K.K. Rai, A.D.N. Rao and Ms
Sushma Suri for the Appearing parties.
E
The Judgment of the Court was delivered by

THOMAS, J. Leave granted.

There was a stir in support of the demand for a separate State of
Uttarakhand comprising of certain hilly regions of the State of U.P. and some
F other areas. The stir collected momentum when the State Government issued
a notification in 1994 pertaining to reservation in educational institutions
based on region-wise domicile. The agitationists fixed up the Gandhi Jayanti
day in 1994 for staging a public rally at New Delhi for the twin objective of
protesting against the notification and to press the demand for the separate
G State. The administration took stern measures to resist the protestors' march
towards the National Capital as the officials claimed to have received secret
information that the proposed rallysts were carryin~ lethal weapons in violation
of the prohibitory orders issued by the Government and might create serious
law and order situation. The confrontation which ensued had resulted in lot
of blood-shed including loss of many lives, infliction of injuries on persons
H belonging to both sides, outraging the modesty of women ranging to
A.K. SINGH v. UTTARAKHAND JAN MORCHA [THOMAS, J.] 627
ravishments. A
An association styling itself as "Uttarakhand Sangharsh Samity" (for
short "the Samity") moved a writ petition in the High Court of Allahabad
(before the Allahabad Bench) on 6-10-1994, for different directions to be
issued to the authorities to meet the consequence of the said confrontation.
A Division Bench of the High Court issued certain interim directions on 7- B
10-1994 one of which was to the Central Bureau of Investigation ('CBI' for
short) to enquire into the allegations of "human rights violations". The
substance of the aforesaid directions is extracted below:

-
"
"Thus., this Court calls upon the Home Secretary, Government of
India and the Central Bureau of Investigation, through 'its Director C
General, by a writ of mandamus, to execute the investigation on the
incidertts which have happened in the regions of Garhwal and Kumaun,
between 17 June 1994 (the date of issue of the first order securing
reservations in educational institutions including its applicability to
these regions) and until the investigation· is determined. The D
investigation will also include the incidents narrated in this petition
in the towns of Khatima, Mussoorie, Dehradun and near
Muzaaffarnagar. The scope of the enquiry by the Central Bureau of
Investigation, on its discretion, will not remain curtailed to these
towns relating to deaths and injuries and molestation of women by
police. E

.. But, the investigation will be confined to: (a) the agitations in the
regions of Garhwal and Kumaun, and to include the Muzafarnagar
incident, (b) the matters connected with the agitations for Uttarakhanad
only, (c) consequential detentions of the agitationists, (d) the agitators
detained, (e) details of injuries, deaths and molestation of women, and F
(f) damage to property, as a consequence of these agitations within
the aforesaid regions."

The CBI took up investigation pursuant to the said directions and laid
charge-sheet against certain officers on 19-1-1995 for offences under Sections G
109 and 120-B read with Sections 341 and 342 of the Indian Penal Code.
Sanction of the State Government was obtained for launching prosecution in
respect of those offences. Some of the accused who were arrayed in the said
charge-sheet filed Writ Petitions Nos.3463 and 3515 of 1995 before the Lucknow
Bench of the High Court of Allahabad, in challenge of the validity of the
sanction order issued by the State Government for prosecuting them. H
628 SUPREME COURT REPORTS [1999) 3 S.C.R.

A On 9-2-1996 the Division Bench of ihe High Court of Allahabad (Ravi
S. Dhawan and A.B. Srivastava, JJ) disposed of the first mentioned writ
petition filed by the Samity holding, inter alia, that no sanction of the
Government is required under Section 197 of the Code of Criminal Procedure
(for short "the Code") for prosecuting the officials as for any of the offences
B committed by them while resisting the rallysts. In view of the aforesaid ~.
stand adopted by the Allahabad Bench. of the High Court, Writ Petitions
3463 and 3515 of 1995 were dismissed by Lucknow Bench of the High
Court on: the premise that those writ petitions have become infructuous.
f
SLPs were filed by the Union of India and the Gdvernment of U.P. as r-
C well as some of the aggrieved officials in -challenge of the judgment dated
9-2-1996. SLPs are also filed against the judgment by which writ petitions
were dismissed by the Lucknow ·Bench as having become infructuous.

We are told that the accused arraigned iri the charge-sheet filed by the
CBI on 19-1-1995 were discharged by the trial court subsequently. If that be
D so, SLP(Cril1linal) No.1810 of 1996 and SLP (Civil) No.12485 of 1996
which were filed against the judgment of the Lucknow Bench must· be
treated to have bec_ome infructuous. We do so. However, learned counse.l for
the petitioners therein expressed apprehension that the order of discharge
may be set aside and the accused therein may have to face prosecution. A
E revision petition is pending before the High Court in challenge of the aforesaid
discharge order. It is submitted before us that in case the order of discharge
is set aside for any reason, dismissal of the aforesaid two SLPs. should not
debar the petitioners from challenging the validity of the sanction order. We
preserve the said right of the petitioners concerned for challenging the
validity of the sanction if such a contingency a~ apprehended would arise in
F future.

The Judgment under attack delivered by the Division Bench of the
Allahabad High Court dated 9-2-1996 consists of a lot of directions. Both the
judges of the Division Bench wrote separate judgments, each of them is
voluminous in size and in the end the directions were catalogued by the
G Division Bench tinder 19 heads as per the common judgment:

We propose to skip major portion of the judgments· as all the learned
counsel who appeared for the parties in this Court were unanimous in
expressing that a large chunk of the judgments contains unnecessary
~eliberations without any nexus with the points in controversy. We too share
H the view expressed by both sides. It is unfortunate that the judgments under
A.K. SINGH v. UTT ARAKHAND JAN MORCHA [THOMAS, J.] 629

challenge contain a lot of rigmorale and learned Judges could have focussed A
on the core issues without niggling on academic subjects. Shri D.D. Thakur,
learned counsel took strong objection to the following observations made by
Dhawan, J:

"This court, of the cases which were brought in large scale violations
of human rights have been occasioned at the hands of the respondents B
•. already named in the reports of. the Central Bureau of Investigation
and that these violations have also partaken the nature of constitutional
torts. Only for demonstrating for fulfillment of the promise formalised
by the legislature of the Uttar Pradesh and under discussion with the
Union Government that the people of Kumaon and Garhwal should C
receive statehood the civil rights activities had to suffer what seemed
like a direct attack by functionaries of the government aimed at them
a
as class."

Learned senior counsel submitted that High Court should have refrained
from making such observations, and such pre-judging of the cases pending D
before the criminal courts should have been averted.

We agree with the said submission of the learned senior counsel that
learned judges should have avoided making observations concerning matters
which are pending consideration by subordinate courts. The High Court did
more than that. Without trial, and even without considering the evidence E

-
which may be adduced in the cases, learned Judges ordered the Government
to pay Rs. IO lakhs each to the dependants of aii the persons who died in
+-
police firing. Rs. I 0 lakhs each were given to the victims of molestation, Rs.
Fifty thousand each for 398 persons who were detained by the police.

All the learned counsel made scathing attack on the rationale of the F
High Court in fixing up such huge sum as compensation at a premature
stage. They contended that the High Court while imposing such heavy liability
on the State has not made any attempt. to discuss the relevant questions
which are to be answered for fixing liability of compensation and for
quantification of the amount of compensation. On consideration we are G
satisfied that there is ample substance in the contentions raised by the
learned counsel in this regard. The direction for payment of compi;;nsation
is clearly unsustainable and is liable to be vacated. We are told that pursuant
to the directions in the impugned judgment amounts have been disbursed to
all those persons who claimed it. We, therefore, make it clear that no further
amount need be paid as compensation pursuant to the judgment of the High H
630 SUPREME COURT REPORTS [1999] 3 S.C.R.

A Court but if any sum has been disbursed to claimants the State will not
recover the same from them. We also make it clear that if any person has
not made his/her claim or has not received compensation despite making a
claim for it, it will be open to him/he.r to approach the competent Court for
compensation in accordance with law.

B The serious criticism made by the learned counsel against the direction
issued by the High Court, regarding fund allotment for the development of
certain regions, cannot be side stepped. That direction is in the following
lines:

c "Damages and compensation for constitutional wrongs committed
subjecting injuries to the class of people of Kumaun and Garhwal for
their only fault that they were securing their civil rights on the
guarantee already given by the legislature, as discussed in the
judgment, the repairment to the people of Kumaun and Garhwal
Divisions shall stand related to their population (5,926,146 : Kumaun
D - 2,943,199, Garhwal - 2,982,947) in the equation of a rupee per
month per person for a plan period of five years and this compensation
shall be invested amongst the population of Kumaun and Garhwal
earmarked specifically for a programme for the upliftment of the

E
woman; 50 paise of this reparation shall come from the State of
Uttar Pradesh and the other 50 paise from the Union of India. This
would be in addition to the normal plan allocation which this area
-
would receive as what the court is suggesting is damages beyond the
normal allocation. The details of the allocation will be chalked out
and formalised at a meeting which will be .called by the
Commissioners of Kumaun and Garhwal representing:
F (i) Members of Parliament of the area:
(ii) Members of the Legislative Assembly of the area, and
(iii) the District Magistrates of the district concerned."

The magnitude of the financial burden for complying with the said
G
direction has been approximately estimated as amounting to several crores
cif rupees. The money has to come out of State coffers. A criticism made
against such direction is that learned Judges of the High Court did not take
into account the financial capacity of the State Government, nor its resources
for making up the said amount nor the priorities to be honoured by the State
H Government nor even the legislative mandates involving State funding, while
A.K. SINGH v. UTTARAKHAND JAN MORCHA [THOMAS, J.) 631

ordering the Government to incur such huge expenditure of a recurring nature. A
This is not a case where the High Court was ordering compensation to
one individual or even to a limited number of persons de horse its legal
liability enjoined by statutory provisions. For Kumaun region the State
Government will have to raise a very substantial amount of about 36 crores
of rupees, and for Garhwal region another huge amount has to be raised, if B
the impugned judgment is in force.

As the learned Judges did not indicate how the Government should
make up the whopping amounts, we are unable to concur with the aforesaid
direction. We cannot ignore the reality that major revenue of the State
Government is through taxation. But no taxation is possible without legislative C
sanction. Government must have other resources to meet the direction.

It may be that people of Kumaun and Garhwal require much upliftment.
But they are not the only regions to be attended to by the State or Central
Government. Every part of the county requires further development. If the D
High Courts are to issue such directions for each region, using different writ
petitions, financial policy may have to be restructured by the Governments.
Judicial creativity has, no doubt, expanded to newer dimensions in recent
past, but that is no justification for using judicial power for imposing such
unbearable burden on the State which in tum would be compelled to extract
money out of common man's coffers to meet such massive financial burden. E
Suffice it to say that the above direction cannot stand judicial scrutiny an,d
it is hereby set aside. '

The Division Bench of the High Court then proceeded to consider
whether sanction of the Government is required for prosecution of Government F
officials for the offences mentioned in the charge-sheet filed by the CBI.
Learned Judges first held that there is no necessity for sanction to investigate
into the offences. The following observations were made for that purpose:

"The High Court did not need any sanction to require the C.B.I. to
inquire and investigate into alleged violation of constitutional torts G
when citizens brought these petitions to the courts, whether the High
Court or the Supreme Court. The Supreme Court had already made
it clear that when the C.B.I. is called upon to investigate any matter,
the sanction of the Central Government is not necessary. A corollary
follows that the C.B.I. would not need any sanction when, acting
under the orders of the High Court, after inquiry and investigation, it H
632 SUPREME COURT REPORTS (1999] 3 S.C.R.

A has come to a prima facie conclusion that as an investigating agency
it is obliged to draw up a charge-sheet."
.-
Nobody raised a contention that sanction of the Government is required
for ordering investigation. Therefore, the aforesaid exercise of the High
Court was one in futility. But the High Court further proceeded and held that
B no sanction is necessary for prosecuting the Government officials as "it is not
part of any official duty to fire on unarmed political activists, exhume dead
bodies of agitators shot in an agitation, loot or plunder unarmed people, and
rape and molest women."

Learned counsel who argued for all the appellants seriously assailed
C the findings of the High Court, firstly, on the ground that question of sanction
under Section 197 of the Code should not have been considered in a writ
petition filed by the Samity and secondly, on the ground that even otherwise
the High Court's reasoning is absolutely faulty.

D It is doubtful whether learned Judges would have meant that no sanction
is required for the court to take cognizance of the offences as the observations
were confined to the stage up to laying the charge-sheet. But we agree that
the .effect of the observations of the learned Judges is to convey the message
that High Court is of the view that no sanction is required for such prosecution.

E We are told that the magistrate before whom the charge-sheets were
laid has taken cognizance of offence under Section 302 of IPC among other
offences. Learned senior counsel appearing for the respondents argued that
no sanction under Section 197 of the Code can be contemplated as for the
offence of murder, for, that offenc~ cannot, by any stretch of imagination, be
regarded as committed in the discharge of official duties. In reply thereto it
F was argued that the magistrate had gone completely wrong in taking
cognizance of the offence under Section 302 of the IPC because the entire
allegations, even assuming that they are true, would only fall within the
contours of Exception No.3 of Section 300 IPC. Counsel contended that the
offence on which cognizance could have been taken was only Section 304
G IPC and not Section 3o2 IPC. ·

We do not think it necessary to decide the question regarding the
offences to be included in the charge which may be framed against the
accused persons because that work has to be done by the Sessions Judges
concerned after hearing both sides, as provided under Section 228 of the
H Code. Appellants can raise their arguments regarding what offences can be
A.K. SINGH v. UTTARAKHAND JAN MORCHA [THOMAS, J.] 633

included in the charge at the appropriate stage. A
The question of necessity of sanction need be considered by the Sessions
Judge if and when raised by the accused. We have no doubt that the High
Court should not have embarked upon a discussion regarding sanction at
such a premature stage, that too in the writ petition filed by the Samity. If
the finding of the High Court is that no sanction is required such finding B
has to be treated as bad mainly because that question has to be decided after
taking into account various considerations including the fact situation in
each case.
Learned Judges issued the following directions regarding the venue of
the trial of different cas~s : C
"Trial for offences within the districts of Kumaun region is to be
held by the court in sessions Division at Nainital and for the offences
within the districts of Garhwal region, Haridwar and Muzzafarnagar,
to be held in the court in Sessfons Division at Dehradun. Where a
special court does not exist, in any of the two sessions divisions, as D
above, it shall be established by the State ofU.P. in consultation with
the High Court, within one month and until so established, the
charge sheet, in context, shall be submitted into the court of the
Chief Judicial Magistrate, and deal with in accordance with chapter
XVI of the Code of Criminal Procedure."
E
The jurisdiction of the Court can b~ decided on the factual foundation
in each case "for offences within the districts" seems to be true with an
expression incorporated in the aforesaid directions. We are of the view that
· the High Court should not have pre-empted the Court, before which, each
case would come up in the nonnal course, to detennine the question of F
jurisdiction, if it is raised by any of the parties. It is difficult for us to
comprehend what the learned judges would have meant by "special court"
to be established by the State Government. There is; no suggestion in the
impugned judgment as to what are the offences alleged to have been committed
by the officials under any special enactment. The aforesaid direction (extracted
above) if allowed to remain in force would create only confusion and provide G
room for procrastination of the trials.

When the above mentioned directions of the High Court are unsustainable
nothing further survives, because the remaining directions in the judgment
are only ancillary or incidental to those main directions. When the main pillars
are to be removed, the edifice cannot be allowed to remain. H
634 SUPREME COURT REPORTS [1999]3 S.C.R.

A On careful consideration of the entire matter we have no hesitation to
hold that the judgment of the High Court is unsustainable and has to be set
aside. The appeal is accordingly allowed and the impugned judgment dated
9 .2.1996 is set aside. There will however, be no orders as to costs.

N.J. Appeals allowed.
B