Baldev Kaur vs State of Punjab

R.L. Anand, J.

Baldev Kaur w/o Palwinder Singh r/o village Gehlon, Tehsil Bhawanigarh, District Sangrur, has filed the present writ under Article 226 of the Constitution of India, for issuing a writ of habeas corpus seeking the directions of this court against the respondents to produce her husband Palwinder Singh in court, failing which a detailed enquiry be conducted by the C.B.I.

According to the petitioner, she is the wife of Palwinder Singh, who was aged about 37 years and was working as a Clerk in the Sangrur Central Cooperative Bank, Sangrur. Maheshinder Singh, the brother of Palwinder Singh was wanted by the police in cases pertaining to different districts and the police of Punjab was searching him off and on and in that connection, they used to raid the house of the detenu. The father of the detenu Gurbachan Singh was also killed by some unknown persons on 7.2.1992 and the family had an apprehension that the same was got done at the hands of the State Agency. Maheshinder Singh left the country and is settled in Canada where he was granted refuge by the Govt. of Canada. On 18.5.1993, cousins of the detenu Harinder Singh, Gurmail Singh and Sukhdev Singh were taken into custody by Inspector Sarup Singh of CIA Staff, Bhawanigrh. They were released after about one week. These persons were picked up because they were related with Palwinder Singh. Feeling apprehensive that he might be picked up by the police Palwinder Singh along with his friend Mota Singh, stayed for one night in the house of Amandeep Singh, a practising lawyer at Sangrur, who was a close friend of Palwinder Singh. It is alleged by the petitioner that on 19.5.1993, the detenu went to Avtar Singh, his colleague, and both met Gurdeep Singh Pannu, DSP, so that the detenu could be produced before the SSP, Sangrur. The SSP was not available, therefore, the detenu and Avtar Singh went to meet their common friend Joga Singh, Assistant Superintendent in Sangrur Jail. Ultimately, the detenu appeared before the SSP, Sangrur for interrogation. The matter was also brought to the notice of Amandeep Singh, Advocate, that the alleged detenu Palwinder Singh had appeared before the SSP for interrogation. Since then, the whereabouts of Palwinder Singh are not known. The detenu was last time handed over to the police and, in these circumstances, the police is bound to produce him. In case the police does not produce Palwinder Singh, the matter should be handed over to the CBI. On these main averments, the petitioner has sought the directions of this court.

The stand of the respondents is that this writ petition is liable to be dismissed on account of delay and laches as the same has been filed in the month of December, 1996, while the allegations pertain to May, 1993. Moreover, the petitioner has suppressed the material facts including the fact regarding the registration of case FIR 38 u/s 212/216, IPC, on 20.5.1993, against Palwinder singh and he was declared a proclaimed offender on 25.10.1993 by the Addl. CJM, Sangrur. The petitioner has also not availed her remedy of filing a criminal complaint before the competent court under the Code of Criminal Procedure.

On merits, the stand of the respondents is that Palwinder Singh never appeared before the SSP as alleged. Maheshinder Singh was wanted by the police and extradition proceedings were initiated. Maheshinder Singh was a terrorist belonging to the Khalistan Liberation Force/Dashmesh regiment and he was wanted in the famous murder case of Sant Harchand Singh Longowal. FIR 98 dated 20.8.1985, Police Station Sher Pur was registered against him. Maheshinder Singh was declared Proclaimed Offender on 12.12.1985 as he left the country on the basis of an illegal passport. Other persons were challaned by the CBI. Gurbachan Singh, father of Maheshinder Singh was murdered in intergang terrorist rivalry by the other terrorists; namely, Yadwinder Singh and Gurtej Singh due to the dispute over sharing the funds collected by Maheshinder Singh for illegal acts. Separate FIR No. 23 was registered on 28.2.1992 in Police Station, Bhawanigarh. Palwinder Singh was also harbouring terrorists and on that account FIR 38 dated 20.5.1993 was registered u/s 212/216, IPC. He was declared a Proclaimed Offender vide order dated 25.10.1994. It is stated by the respondents that the allegations of the petitioner are merely a figment of imagination. Avtar Singh never contacted the SSP, Sangrur. Palwinder Singh never met Gurdeep Singh Pannu, DSP (Detective), Sangrur or Jasminder Singh, the then, SSP Sangrur on 19.5.1993 as alleged. Palwinder Singh was never kept in the office of the SSP, Sangrur. Nobody ever approached the SSP, Sangrur, with regard to the alleged detention of Palwinder Singh in May, 1993. Some preliminary investigation was also conducted on the basis of some complaint and during the course of investigation, Sarvshri Buta Singh, ExMember of Parliament, Sukhdev Singh and Joginder Singh Mann, ExMinister, were associated and they gave their affidavits from which the allegations of the complaint were not fortified. It was categorically stated by the respondents that Palwinder Singh was never in the custody of Jasminder Singh and no conversation as alleged took place with Anil Kumar Sharma, who was the successor of Jasminder Singh, SSP. The police of district Sangrur, wanted to arrest Palwinder Singh, who was declared a Proclaimed Offender. A criminal case was registered against him u/s 212/216, IPC. By denying the main averments, the respondents pray for the dismissal of the petition.

I have heard Mr. Navkiran Singh, counsel for the petitioner and Sarvshri Anupam Gupta, counsel for respondent No. 3 and Mr. S.K. Sharma, DAG, Punjab, for the respondents, and with their assistance have gone through the record of this case.

In brief the case of the petitioner is that Palwinder Singh was allegedly picked up in the month of May, 1993 and, in these circumstances, the police is bound to show the whereabouts of Palwinder Singh and if the police fails to explain satisfactorily, the alleged detention of Palwindr Singh, the matter should be handed over to the CBI for enquiry. On the contrary, the stand of the respondent is that a criminal case u/s 212/216, IPC, was registered against Palwinder Singh. He became an absconder. A request was made to the Addi. CJM, Sangrur, for declaring him as Proclaimed Offender. In the said case, an application was moved by Smt. Ranjit Kaur, mother of Palwinder Singh and she levelled some allegations against the police about the kidnapping of Palwinder Singh and a prayer was also made for the rejection of the police request for declaring Palwinder Singh as a Proclaimed Offender. The certified copy of the judicial order dated 25.10.1994 has also been produced to show that Ranjit Kaur made an application before the learned Addl. CJM opposing the request of the police for declaring her son Palwinder Singh as a Proclaimed Offender. After considering the rival submissions, the Addl. CJM gave a positive finding that in the absence of any proof regarding kidnapping of Palwinder Singh by the police, no straightway inference can be drawn and the request of the prosecution for declaring Palwinder Singh as proclaimed offender cannot be declined because the purpose of issuance of the proclamation is to inform the accused regarding his appearance in the court or before the police. Since he has not turned up, despite the service through proclamation u/s 82, Cr.P.C., I have no other option, but to infer that he is intentionally absconding. Hence, he is declared a proclaimed offender.

The petition is liable to be dismissed on the short ground that Baldev Kaur, the present petitioner, has concealed the material fact that earlier her motherinlaw Ranjit Kaur made a request before the Magistrate for not declaring Palwinder Singh as Proclaimed Offender. Once it is held by the competent court of jurisdiction that there is no, prima facie, evidence to show that Palwinder Singh ever appeared before the SSP or he was ever picked up, this court cannot give the directions for handing over the investigation to the CBI as this court is also not convinced that Palwinder Singh, at any point of time, appeared before the SSP, Sangrur. The petition is further liable to be dismissed on the ground of delay though, it was argued by Mr. Navkiran Singh that in habeas matters, the delay does not come into play for the disadvantage of the person who knocks at the doors of the court and complains regarding the illegal detention.

In the present case, it is, prima facie, not established that Palwinder Singh ever came into the custody of the police. The petitioner is none else but the wife of Palwinder Singh. Ranjit Kaur, mother of Palwinder Singh, after the passing of the order dated 25.10.1994 did not move to any court to the effect that her son has been abducted. It will be unfair on the part of this court to resort to the extraordinary provisions in the year 1996 especially when the petitioner has failed to establish about the illegal detention of her husband in the custody of the police. In CWP 10667 of 1996 Hakim Singh v. State of Punjab, the Hon''ble D.B. of this court held that the CBI enquiry was not called for particularly when the incident related to the year 1993 and the petition u/s 226 of the Constitution of India was moved in the year 1996 praying for CBI enquiry into the matter. The delay in this case has not been explained by the petitioner, who is guilty of concealing the material facts about the earlier conduct of Ranjit Kaur. In the absence of any prima facie evidence that Palwinder Singh was called in the office of the SSP, it will be unfair on the part of this court to give the directions as prayed for by the petitioner.

Resultantly, I dismiss this petition with the observation that let the petitioner may file a criminal complaint, if so advised, in the court of competent jurisdiction against the persons who in her opinion can be, prima facie, guilty for the alleged kidnapping/abduction of her husband.