Gurbachan Kaur vs State of Punjab

T.H.B. Chalapathi, J.

Criminal Writ Petition No. 220 of 1997 has been filed for issuance of a writ of habeas corpus by the petitioner that her son Gurbaj Singh alias Baja was arrested in case FIR No. 61 dated 22.11.1992 and thereafter he was sent to Security Jail, Nabha and he was allowed interim bail for a period of one month and six days to enable him to appear in the LL.B. Examination from 1st March, 1993 to 6th April, 1993. But in he was taken into custody on 3.3.1993 in case FIR Nos. 85 dated 20.5.1990 and was produced before the Sub Divisional Magistrate, Sunam, who granted police remand and thereafter another case FIR No. 15 dated 5.3.1993 was also registered against him. When the detenu was being taken for the recovery of arms some firing and cross firing took place. According to the police, the detenu escaped and his whereabouts were not known after 5.3.1993. Hence the petitioner filed this petition.

A reply has been filed. By an order dated 7.1.1998 this Court directed an inquiry by the learned Sessions Judge, Sangrur. In pursuance of the order of this Court, the learned Sessions Judge conducted the inquiry and submitted his report dated 3rd August, 1998. After considering the evidence produced before him by the parties, the learned Sessions Judge, Sangrur recorded his findings that Gurbaj Sigh is dead and is not traceable and that encounter took place on the intervening night of 12/13.3.1998 (12/13.3.1993 ?) in the area of Police Station, Malerkotla, as alleged, and Gurbaj Singh was killed in a fake encounter.

After the receipt of the said inquiry report, the petitioner filed Criminal Misc. No. 52 of 1999 for compensation. Inspector Gormail Singh, who is respondent No. 3 in this petition filed a reply alleging that the report of the inquiry dated 3.8.1998 submitted by the learned Sessions Judge, Sangrur is against facts and circumstances and contrary to law and the learned Sessions Judge failed to appreciate the evidence on record. He further reiterated that he was not in any way concerned with the incident dated 12/13.3.1993 and the petitioner is not entitled to any compensation.

The Senior Superintendent of Police, Sangrur has filed a reply on behalf of the State and other respondents contending that the application is not maintainable for grant of compensation at this stage and the findings of the learned Sessions Judge are based on surmises. According to him, the son of the petitioner escaped from police custody and he joined the gang of terrorists and on 13.3.1993 attacked the police party headed by Inspector Bikram Singh and in the said encounter Gurbaj Singh alias Baja was killed for which a case FIR No. 21 dated 13.3.1993 under Sections 224 and 307 read with Section 34 I.P.C. was also registered and, therefore, the petitioner is not entitled to any compensation.

I have considered the report of the learned Sessions Judge, Sangrur very carefully. Before the learned Sessions Judge, the 2nd respondent namely the Superintendent of Police, Patiala has filed a counter on behalf of the State and for himself and respondent No. 3 namely Inspector Gurmail Singh has also filed a counter and all the respondents participated in the inquiry. The petitioner examined three witnesses while the respondentState examined 18 witnesses. The entire evidence was considered by the learned Sessions Judge in detail and minutely. After considering the evidence produced by the petitioner as well as by the respondents i.e. State, Senior Superintendent of Police and Gurmail Singh, Inspector, the learned Sessions Judge recorded the finding that the son of the petitioner was killed in a fake encounter.

I have also gone through the evidence adduced by both sides and after carefully going through the evidence and report of the Sessions Judge, I do not find any reason to disagree with the findings recorded by the learned Sessions Judge. I, therefore, confirm the same.

The learned counsel for the State sought to justify the killing of the petitioner''s son on the ground that during those days, the terrorism was at its peak and there was any amount of lawlessness and in order to curb the lawlessness the police have to take different actions against the law breakers. In fact, the situation in 1993 when the incident took place was of not that magnitude as is sought to be projected by the learned counsel for the petitioner. The State of Punjab in 1993 had become peaceful and there was no terrorism after 1992. The son of the petitioner was a student of law. In fact he was released on parole in March 1993 only to enable him to appear for the law examination. Without having any respect to the order of the Court, the Police sought his remand in some other case to prevent the son of the petitioner from appearing in the Law Examination. Had he not been picked up for police remand, the incident would not have taken place. It is very clear that the Police did not want the son of the petitioner to appear for the examination and live peacefully. He was released only for a period of 37 days on parole. The police should have waited for the completion of the period of parole. Nothing has come out on the record which prompted the police to seek police remand in a case registered in 1990. If really the intention of the police was genuine, they would have sought remand for interrogation in FIR No. 85 dated 20.5.1990 before his release to enable him to appear for LL.B. Examination. The very fact that the police never sought for a police remand when he was in custody in connection with another case and the fact that they sought the police remand only after his release to enable him to appear for the LL.B. Examination, shows the motive of the police to prevent him from appearing in the examination and also, if possible, to eliminate him. This is an intentional act on the part of the police. The facts of this case do not bring any credit to the Punjab Police. Their conduct clearly shows their highhandedness and they have been immune from any action. It is not a question of suppression of terrorism. The facts in this case clearly establish the attitude of the police who wanted to take personal revenge against those people who have not comprised with them. There cannot be any doubt that their organised violence at the top will lead to an unorganised violence at the bottom. Blissfully, the police in Punjab was not aware of this principle. On the facts of this case, I have no manner of doubt that the Punjab Police during those days considered themselves to be above law and they went on to apply to themselves the principle that "king can do no wrong."

On the facts and circumstances of the case, I have no manner of doubt that the son of the petitioner Gurbaj Singh alias Baja was eliminated by the Govt. officials. So, it is not possible at this point of time to fix the responsibility on any particular individual serving the State. On the facts of the case, I am of the opinion that the State must compensate for the acts of its officers by fixing vicarious liabilities.

Accordingly, I hold that the State is liable to pay the compensation and I quantify the compensation at Rs. 1,50,000/ (Rs. one lac fifty thousand) to be paid by the State to the petitioner and the wife and minor son of the deceased. This amount shall be paid within one month from the receipt of the copy of this order by the Chief Secretary to Government Punjab. If the said amount is not paid within the aforesaid period of one month, it shall carry interest @ 15% P.A. from today till the date of actual payment. The amount of compensation now awarded is tentative and is to be adjusted in case the legal heirs of the deceased take any other proceedings for damages for the death of the deceased.

The Criminal Misc. is, accordingly, disposed of.