Dildar Singh vs State of Punjab and anr.

V. K. Bali, J. (Oral)

The prayer in this petition filed under Article 226 of the Constitution of India is to issue writ in the nature of habeas corpus directing respondents to allow the petitioner and other near relatives, like, sister and brothers to see the detenus on any working day at Patiala Jail as also to allow the counsel, Navkiran Singh and Ranjan Lakhanpal to meet them on any day during the working hours even though legal interview might be within the light of Jail Officials but not within their hearing.

The peculiar facts on which the relief aforesaid, rests, reveal that son of petitioner, Kanwar Singh, his wife Kulbir Kaur and their six years old son, Ranbir Singh are presently detained in District Jail, Patiala. They were remanded to judicial custody on April 8, 1994 in case F.I.R. No. 28 dated March 29, 1994, under Sections 124A, 153A, 505(1) of the Indian Penal Code, 3(2), 31 14 of the Foreigners Act, 1946, 3 of the Official Secrets Act, 1923 and 3/4 of the Terrorists and Disruptive Activities (Prevention) Act at Police Station Anandpur Sahib. The case of petitioner is that the detenus were shown to have been arrested after ten months of illegal detention and were subjected to inhuman torture at the hands of Ropar police. Inasmuch as the relatives and counsel representing the persons aforesaid were worried about their welfare, they wanted to supply them some items of daily need in the jail.

On April 11, 1994, A. S. Nehra, J. issued notice to the Advocate General, Punjab, for April 22, 1994 and in the meantime respondent 2 was directed to permit Mr. Navkiran Singh and Mr. Ranjan Lakhanpal, Advocates of this Court, to see the detenus in a separate room in the jail premises during working hours on April 12, 1994 in the absence of jail officials and CID officials.

During the pendency of this writ petition, Crl. Misc. No. 40 of 1994 was filed wherein it was mainly pleaded that in consequence of the meeting of counsel with the detenus, the facts that were gathered were that they (detenus) were being detained in separate solitary confinements since the time they were lodged in Patiala jail. Smt. Kulbir Kaur told the counsel that due to torture on April 8, 1994 at the hands of Shri Harpal Singh, D.S.P. (D), Ropar, she started bleeding profusely. She was hung upside down by ceiling by the said D.S.P. (D) and then was beaten which resulted into bleeding. She was taken to a Private Nursing Home known as Kiranjeet Nursing Home, Ropar where the doctor advised the police to get the patient admitted in the P.G.I. but instead of taking her to P.G.I., she was transferred to Patiala Jail on the evening of April 9, 1994. At the time of her admission in the jail, she was still bleeding, so, around 12 p.m. in the deadnight, she was taken to Rajindra Hospital, Patiala, where she was examined but was sent back to jail. On April 10, 1994 for the whole day she kept on bleeding but no body bothered. Even the jail doctor did not care to visit her. Compounder alone came and gave her an injection of Bralgan, a pain killer. On 11th morning, the Jail doctor came and examined her and took her to Rajinder Hospital, Patiala in the evening where she was admitted and ultimately the doctors terminated her pregnancy at 9 p.m. After three hours, she was discharged and brought back to the jail even though she was still bleeding and needed constant medical attention and rest. From 12 p.m. to 12 noon of the next day i.e. April 12, 1994, she was all alone in her cell and there was no body to look after her. She was neither served with glass of water nor was given any food. Smt. Kulbir Kaur lost her three months'' old pregnancy due to the torture at the hand of D.S.P. (D), Ropar, Harpal Singh and due to negligence and carelessness of the doctor and Jail Superintendent. It is further pleaded that detenus are still undergoing mental torture and are not even being given proper food to eat. The jail officials seem to be under pressure of the local police and, therefore, they are expressing their inability to treat them in a better way. On the aforesaid facts, the prayer other than the one, noticed above, is to transfer Kanwar Singh, his wife, Kulbir Kaur and their six years old son, Ranbir Singh, to Chandigarh jail as also to direct the State to get the detenus medically examined by Board of Doctors at P.G.I., Chandigarh. Further prayer is to put a ban on removal of the detenus for the purpose of remand in the case in which they are detained or in any other case without permission of this Court as also to keep them in a common cell as the wifeKulbir Kaur needs attention and care being bedridden. When the Criminal Misc. No. 40 of 1994 which was filed during the pendency of the writ petition once again came up for hearing before A. S. Nehra, J., the following order as passed on April 14, 1994 :

"Superintendent, Central Jail, Patiala is directed to keep Kanwar Singh, his wife Kulbir Kaur and their son, Ranbir Singh in a common cell. The respondents are further directed not to remove the above detenus from Central Jail, Patiala, for the purpose of remand in this case or any other case without the permission of this Court. The doctor of Central Jail, Patiala, is directed to give proper medical aid and food to the detenus till further orders. Mr. Aggarwal, had contended that the detenus are being given proper treatment by the doctor and food by the jail authorities. A copy of this order may be given to Mr. Ashok Aggarwal, Addl. A.G., Punjab, who shall convey the same to the Authorities concerned."

Respondents have filed replies, both to the Criminal Writ as also Criminal Misc. No. 40 of 1994. Replies have been filed separately by respondents No. 1 and 2.

4A. Respondent No. 2 in his reply by way of affidavit pleads that insofar as daily needs are concerned, everything is being supplied regularly to the persons mentioned in the petition, alleged to be detenus. It is also stated that interviews are to be allowed under the Rules but in view of the orders passed by this Court on April 11, 1994, Navkiran Singh and Ranjan Lakhanpal, counsel of the undertrials were allowed to have an interview in a separate room in the jail premises on April 12, 1994. Shri Sohan Lal, Superintendent of Police, Rupnagar, in his reply by way of affidavit pleads that petitioner, who is father of Kanwar Singh, has no locus standi to file this writ petition. On merits, it is pleaded that Kanwar Singh, his wife, Kulbir Kaur and their son, Ranbir Singh were arrested in connection with case F.I.R. No. 28 dated March 29, 1994 under Section 124A etc., as mentioned in the earlier part of the judgment. The said case was registered against them at Police Station Anandpur Sahib, Distt. Ropar and they were produced before the Sub Divisional Executive Magistrate, Anandpur Sahib on March 30, 1994 by the local police of Anandpur Sahib. They were remanded to police custody for ten days and now they are in judicial lockup at Central Jail, Patiala. Their detention is, thus, pleaded to be valid and constitutional and in accordance with the provisions of Code of Criminal Procedure.

Reply to Criminal Misc. No. 40 of 1994 has also been filed pleading therein that prayers (i) and (ii) were subject matter of Crl.W.P. Nos. 204 of 1994 and 206 of 1994, which were disposed of by J. B. Garg, J. vide order dated April 5, 1994 and, thus, same prayers could not be entertained by way of present petition. On merits, the case pleaded is that undertrial, Kulbir Kaur, wife of Kanwar Singh was neither tortured by Harpal Singh, DSP (D) nor was she taken to private Nursing Home at Ropar. It is further stated that Kulbir Kaur along with her husband Kanwar Singh and son Ranbir Singh was sent to judicial lockup at Central Jail, Patiala in a very sound and safe condition. The persons mentioned above were arrested on March 29, 1994. They were produced before the Sub Divisional Executive Magistrate, Anandpur Sahib on March 30, 1994 by Anandpursahib police. In view of the facts stated above, the prayers of the petitioner, as noticed above, have been opposed.

Respondent No. 2Gurdarshan Singh Gill, Superintendent, Central Jail, Patiala has also filed his reply pleading that the undertrials were confined in separate cells under the provisions of Prisons Act, 1894 and there is no provision to keep the undertrials in one cell. Reliance is placed on Section 27(i) which reads thus :

"The requisition of this Act with respect to the separation of prisoners are as follows :

"In a prison containing female as well as male prisoners, the females shall be imprisoned in separate building or separate part of the same building in such a manner as to prevent their seeing or combersing or holding any intercourse with the male prisoners."

On merits, it is pleaded that undertrial Kulbir Kaur was admitted in jail on April 9, 1994. She was taken to Rajindra Hospital, Patiala where she was examined and after treatment was sent back to jail by the hospital authorities. It is denied that she was not attended by the jail doctor. It is, however, admitted that she was taken to Rajindra Hospital on the advice of jail doctor and her pregnancy was terminated by the doctors of the hospital. In jail she was given proper treatment, medicines, food and other facilities as per Rules. It is also pleaded that she was provided with a female attendant to look after her. The fact that pregnancy of Kulbir Kaur was terminated due to negligence and carelessness of jail authorities, has been denied. It is further stated that undertrial Kulbir Kaur was transferred to jail on April 9, 1994 in the morning and at that time she had not complained of any problem like bleeding. However, she informed the jail doctor about bleeding etc. in the evening of April 9, 1994 whereafter she was taken to Rajindra Hospital, Patiala and as per report the abortion took place on April 11, 1994 and she was discharged from the hospital on the next day.

Dealing with the question of locus standi first, it shall be noticed that petitioner is none other than father of undertrial Kanwar Singh and obviously, fatherinlaw of Kulbir Kaur and grandfather of Ranbir Singh. The persons, for whom the reliefs indicated above have been asked for, are admittedly in judicial lockup. In the very nature of things, it is not possible for them to contact lawyers nor is it possible for the lawyers to go to jail and contact them time and again due to their busy professional engagements. It is also well known that from time to time various kinds of pleadings are necessitated and it becomes very difficult, if not impossible, to obtain the signatures or thumb impressions of those who are detailed in jail. In these circumstances, a person who is vitally interested in the welfare of those, who are detained in jail, in view of this Court, would have every locus standi to ask for the reliefs as have been asked in the present writ. Mr. Aggarwal, learned Additional Advocate General, Punjab, however, relies upon two judgments of the Supreme Court in Simranjit Singh Mann v. Union of India and Ors., 1993(1) Recent Criminal Reports 2 (SC) : JT 1992(5) SC 441 andKaramjeet Singh v. Union of India and Ors., 1993(1) Recent Criminal Reports 48 (SC) : JT 1992(5) SC 598 . The question formulated by the Supreme Court in Simranjit Singh Mann''s case (supra) in the very first para of the judgment reads as under :

"Whether a third party, who is totally stranger to the prosecution culminating into the conviction and sentence of the accused has locus standi to ask for setting aside the conviction awarded to the convicts in a petition brought under Article 32 of the Constitution of India ?"

The facts of the case reveal that a petition under Article 32 of the Constitution of India challenging the conviction was filed by a complete stranger. It is, thus a case for setting aside the judgment vide which the accused were convicted, by a stranger. The facts of the said case have no parity with the facts that are in hand before this Court. The facts of the other case relied upon by Mr. Aggarwal i.e. Karamjit Singh''s case (supra) are also similar.

The Supreme Court in a recent judgment arising out of the judgment of this Court in Punjab and Haryana High Court Bar Association Chandigarh v. State of Punjab and Ors., rendered in Civil Appeal No. 7243 of 1993, decided on December 7, 1993, 1994(1) Recent Criminal Reports 205(SC) upheld the locus standi of a litigant who had complained of abduction and murder of a practising lawyer at Ropar, his wife and their two years old child. The facts of the case clearly reveal that a public interest litigation was instituted by one Suresh Kumar of Ambala, who did not even have remote connection with the deceased Kulwant Singh or his family. A Full Bench of this Court had dismissed the petition as withdrawn by a speaking order on March 19, 1993. In all probability Suresh Kumar had moved the High Court praying withdrawal of his petition but Mr. G. S. Grewal, Senior Advocate, appearing on behalf of Punjab and Haryana High Court Bar Association, Mr. H. S. Hooda, Senior Advocate, appearing for the Bar Council and Mr. S. C. Mohunta, Senior Advocate, appearing for various other Bar Associations had contended before the Full Bench that the writ petition, which was in the nature of public interest litigation, could not be allowed to be withdrawn. While dealing with the matter, the Supreme Court opined that "it is not necessary for us to go into the question as to whether the writ petition before the High Court was for bringing an end to the lawyers'' strike or to appoint an independent enquiry agency to probe into the disappearance and alleged murder of Kulwant Singh Advocate and his family. Be that as it may, the fact remains that the Five Judge Bench of the High Court was seized of the matter wherein the issues regarding the abduction and alleged murder of Kulwant Singh Advocate and his family were raised before it.........The High Court was wholly unjustified in closing its eyes and ears to the controversy which had shocked the lawyer fraternity in the region. For the reasons best known to it, the High Court became wholly oblivious to the patent facts on the record and failed to perform the duty entrusted to it under the Constitution. The preliminary objection raised by Mr. Aggarwal, in view of the authoritative pronouncement of the Supreme Court in Punjab and Haryana High Court Bar Association''s case (supra) is, thus, repelled.

Coming now to the merits of the case, it is not disputed that there was an abortion of undertrial Kulbir Kaur and her three months old pregnancy was terminated. There is version and counter version to the reasons leading to the termination of pregnancy. It is difficult for this Court on the basis of scanty evidence that is available, to give an opinion one way or the other but the fact that it is under detention that there was abortion of three months'' pregnancy on the ladyKulbir Kaur guides the judicial conscious of this Court to permit the genuine prayers and which prayers are such that cannot possibly cause any harm to the State. This course has been adopted by this Court on the basis of well known maxim that "Justice must not be only done but it must appear to have been done." If there is even half the truth in the allegations made by the petitioner, it will be a traversity of justice to deny the reliefs of kind that have been asked for in the writ petition i.e. to transfer the undertrials to Chandigarh jail and to examine the ladyKulbir Kaur by a team of doctors of P.G.I., Chandigarh.

In totality of circumstances, thus, this Court orders that :

(a) undertrials, Kanwar Singh, his wife Kulbir Kaur and their son, Ranbir Singh, be shifted to Burail Jail, Chandigarh, forthwith;

(b) they all be lodged in one cell as the rule relied upon by the State to keep them in separate cells, as has been reproduced above, is wholly inapplicable where male and female prisoners happen to be husband and wife and particularly when the wife is bedridden and requires attention;

(c) interim orders passed by A. S. Nehra, J. on April 14, 1994, directing the respondents not to remove the above named three persons from Jail for remand purposes in connection with the case under which they are detained or any other case without prior permission of this Court, is made absolute;

(d) Inasmuch as prayer of petitioner for medical aid has already been allowed by the Supreme Court in Writ Petition (Crl.) No. 99 of 1994 vide order dated April 9, 1994 and in consequence whereof the Sessions Judge has already passed orders on April 22, 1994, the said prayer has become infructuous. It is, however, ordered that the examination of the undertrial Kulbir Kaur would be done by the doctors of P.G.I., Chandigarh.

The Chandigarh Police only would bring the undertrials from Patiala Jail to Burail Jail, Chandigarh. This prayer asked for during the course of arguments, has not been opposed by Mr. Aggarwal, learned Addl. A.G. Punjab.

This petition is disposed of accordingly. There shall, however, be no order as to costs.

A copy of this judgment be sent to the Senior Superintendent of Police, Chandigarh and Registrar or Medical Supdt. P.G.I., Chandigarh, immediately.

Copy Dasti.