Hardeep Kaur vs State of Punjab

H.S. Bedi, J. (Oral)

The petitioner is the mother of one Maninder Singh Dalli, who is stated to have been 25 years of age when the incident in question took place. It has been averred that this young man was picked up by a Haryana Police Party led by respondent No. 3, i.e. Dhanpal Singh, D.S.P., Yamuna Nagar on March 2, 1993 from the petitioner''s residence in Saharanpur and it was intimated to the petitioner that he was being taken for investigation and would be released very soon. As this promise was not carried out, the petitioner approached respondent No. 3, once again for his release but was told that he would be let off within a week. It has been alleged that despite this assurance, Maninder Singh was still missing and had not been released. Hence this petition for a writ of Habeas Corpus.

Notice was issued to the respondents and various affidavits were filed in reply. Sh. Gurnam Singh, D.S.P., Patiala, in his affidavit deposed that Maninder Singh alias Dalli had been remanded to judicial custody in a case bearing F.I.R. No. 30 dated 15th March, 1993 registered under Sections 4/5 of the Explosive Act at Police Station Sadar, Yamuna Nagar. It has further been averred that the detainee was produced before Additional C.J.M. Patiala on March 19, 1993, on the basis of warrants issued by the said Court as he was wanted in connection with the investigation of case bearing F.I.R. No. 303 dated November 1, 1991, registered under Sections 307/34 of the Indian Penal Code and Sections 3/4 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 and he was remanded to police custody till March 22, 1993 which was further extended to March 25, 1993 and then to April 7, 1993 on which date the accused was remanded to judicial custody till April 21, 1993. The accused was, however, arrested on the same day in a case bearing First Information Report No. 117 registered under Sections 302/382 of the Indian Penal Code at Police Station, Civil Lines, Patiala and remanded to police custody first up to April 16, 1993 by the S.D.M. Patiala and subsequently upto April 22, 1993 and on this date was remanded to judicial custody till April 29, 1993. On April 22, 1993, however, the accused was arrested by A.S.I. Jaswant Singh of Police Station Bhawanigarh District Sangrur in a case bearing F.I.R. No. 85 dated April 22, 1993 registered under Section 302 I.P.C. and Sections 25 of the Arms Act, at Police Station, Bhawanigarh and his police remand was again obtained up to April 27, 1993 and on April 22, 1993, under Court orders was handed over to the police of Police Station, Bhawanigarh.

In the reply filed by Sh. Jagjit Singh Gill, Deputy Superintendent of Police, Sangrur, it has been admitted that the accused was arrested and handed over to A.S.I. Jaswant Singh of Police Station, Bhawanigarh, District Sangrur on April 22, 1993. It has, however, been asserted that when the accused was being taken for the recovery of arms and ammunitions, the police party was fired at by some unknown persons and in the ensuing exchange of fire, which continued for about half an hour, had escaped from police custody under cover of darkness and for this incident, a case bearing F.I.R. No. dated April 24, 1993, under Sections 307/224/34 of the Indian Penal Code and Section 25 of the Arms Act had also been registered at Police Station, Bhawanigarh.

Respondent No. 3 Dhanpal Singh, Inspector S.H.O. Police Station City Yamuna Nagar, had also filed a written statement in which it has been admitted that the accused had been arrested as already indicated above along with another person namely Gurmeet Singh alias Meeta in a case bearing F.I.R. No. 30 dated March 15, 1993, registered under Sections 4/5 of the Explosive Substance Act and Sections 3/4/5 of the TADA (P) Act at Police Station Sadar, Yamuna Nagar. It has also been admitted that both Maninder Singh and Gurmeet Singh were subsequently handed over to the Patiala Police and were never, thereafter, produced before any Court in Haryana by the Punjab Police.

On these facts, this Court on December 22, 1993, ordered the Sessions Judge, Patiala, to hold an enquiry into the matter and submit a report to this Court. This report has been received and after a very elaborate discussion and on a consideration of the voluminous evidence produced before him by the parties, the Sessions Judge, has recommended as follows :

(i) To order for the registration of case under Section 302/149 IPC read with Section 27 of the Indian Arms Act, against S.I. Harinder Pal Singh, ASI Jaswant Singh, H.C. Kulwant Singh, C. Balkar Singh No. 859, SPO Gurcharan Singh, S.P.O. Sukhwinder Singh, S.P.O. Dalip Singh, SPO Jaswant Singh, S.P.O. Bhupinder Singh, C. Gurchain Singh No. 162, SPO Harjinder Singh as all of them hatched a conspiracy to liquidate Maninder Singh alias Dalli. Their unlawful object was to liquidate him and in prosecution of the said unlawful object, they murdered him in the area of village Majhi within the jurisdiction of Police Station, Bhawanigarh.

(ii) All the members of the police party may be put under suspension and they may be posted at different places than that of Bhawanigarh.

(iii) Investigation of this case be given to the C.B.I. authorities in order to unearth the truth.

(iv) That the Hon''ble High Court may order the State Government for the grant of suitable compensation to the parents of the deceased, who have lost their son irrespective of the fact that Maninder Singh alias Dalli was a man of suspected antecedents.

(v) Departmental action against Dhanpal Singh respondent for keeping Maninder Singh in illegal custody from 2.3.1993 to 14.3.1993, may be ordered.

After hearing the learned counsel for the parties, I deem, it appropriate that the recommendations of the learned Sessions Judge need to be substantially accepted. Mr. Walia, appearing for some of the police officials has urged that the High Court had only ordered that a report be sought from the Sessions Judge, Patiala and he had not been called upon to make any recommendation. Be that as it may, I accept the recommendations made by the Sessions Judge, as if they were, in fact, made by this Court. It is apparent from the above that there was something mysterious about the disappearance of Maninder Singh alias Dalli and Gurmeet Singh alias Meeta and an enquiry should be made with regard to the latter''s disappearance as well. As a follow up, it is directed that a case be registered against the indicted police officers and to ensure a proper investigation, all these police officers be posted at places other than Bawanigarh. It is further directed that the investigation of this case be handed over to the C.B.I. and for this purpose, Mr. Ranjit Pachnanda, Superintendent of Police, C.B.I. may approach the Additional Registrar (Judicial) of this Court, so that he can personally take the custody of the record which will be given to him under proper receipt. The matter with regard to the action if any that is to be taken against Dhanpal Singh is left open till after the report of the C.B.I.

The question now arises as to the manner in which the petitioner is to be compensated for the loss suffered by her. It is to be noted that the positive finding of the Sessions Judge, is that the police officers had murdered Maninder Singh alias Dalli in the area of village Majhi within the jurisdiction of Police Station, Bhawanigarh and the object of taking him into custody was to liquidate him. It is, therefore, apparent that these police officers as agents and instrumentalities of the State have exceeded the powers conferred on them. The Law Commission of India, in a report circulated recently to the Judges of the High Courts for their comments observed that it was appropriate that some provision be made for compensation to the kith and kin of those killed in police custody. The principles and the basis of award of compensation have also been suggested that it has been noted placing reliance on various judgments of the Supreme Court that the Court has granted compensation to the extent of Rs. 75,000/ to Rs. 2,00,000/ as an interim measure to the legal heirs of the victims and that the award of compensation has varied from case to case on the facts of each case. Nilabati Behera (Smt.) alias Lalita Behera (Through the Supreme Court Legal Aid Committee) v. State of Orissa and others, 1994(1) Recent Criminal Reports 18 (SC) : 1993(2) Supreme Court Cases 746, is the latest judgment on the question posed and has neatly summed up the law on the point of compensation arising out of custodial deaths. The Hon''ble Bench considered a large number of judgments rendered earlier by the Supreme Court on the point in question and observed :

"It follows that ''a claim in public law for compensation'' for contravention of human rights and fundamental freedoms, the projection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is ''distinct from, and in addition to, the remedy in private law for damages for the tort'' resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers and enforcement of the fundamental rights is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution. This is what was indicated in Rudul Shah and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226 of the Constitution for contravention of fundamental rights."

It was further observed that the Court could not be a mute spectator to what was going on around it and judicial activism was required so that new toss could be created for ensuring complete justice and enforcing the fundamental rights guaranteed under the Constitution. It was further observed that to the contrary would not merely render the Court powerless, but could in certain situations, be an incentive to extinguish life. It was also observed that "if the guarantee that deprivation of life and personal liberty cannot be made except in accordance with law, is to be real, the enforcement of the right in case of every contravention must also be possible in the case constitutional scheme."

The question now arises as to what would be the appropriate compensation to be given to the heirs of Maninder Singh alias Dalli. I have pondered carefully over this question and deem it appropriate that a broad principle with regard to this matter ought to be laid down. The unfortunate situation in this State over the last decade, perhaps gives a broad hint of the amount that ought to be given as an interim measure. The State Government has framed a scheme for the grant of compensation and other benefits to the innocent victims of terrorist violence and has, thereby itself put a money value on such deaths. Maninder Singh alias Dalli may have been a shady character but he had a right to be treated as innocent till he was found guilty by a competent Court. The notion that the police can act as the investigator, prosecutor and the Judge must be dispelled and sooner the better. When viewed in this perspective, I deem it appropriate that the death of Maninder Singh alias Dalli should be equated with that of victims of terrorist violence in the State of Punjab and his heirs would be entitled to the grant of compensation and all other benefits on that basis as per the policy that was in existence on 23rd April, 1993. For this purpose, the petitioner Smt. Hardip Kaur, will make an application to the District Magistrate, Sangrur, who will ensure that the monetary compensation is paid within a period of one month from the date of the application and all other benefits including employment on a priority basis would also be made available within a period of three months therefrom. It is also clarified that the compensation which is being given by this Court is an interim measure and would not debar the legal heirs of Maninder Singh to pursue any other remedy with regard to further claims which may be open to them. I may fully alive to the fact that a very high standard of proof is required for conviction in a criminal case and it is possible that on investigation, the C.B.I. may find that it lacks the evidence to suggest a trial or in the alternative should a trial be held, the Court may acquit the accused. But it is to be noted that the standard of proof in determining civil or constitutional liability more particularly in the violation of a fundamental right is qualitatively different and to my mind, the report of the Sessions Judge, is reason enough for fastening the liability on the State Government for the payment of compensation. The decision of the Supreme Court in Sebastian M. Hongray v. Union of India and others, 1984(3) SCC 82 is significant on this aspect. In this case, exemplary costs were awarded in a writ of Habeas Corpus on the failure of the detaining authority to produce the missing persons on the premise that they were not alive and had met an unnatural deaths at the hands of the instrumentalities of the State and a further direction, was also issued that a criminal case be registered and investigation started as the State could not disown its liability.

Mr. Aggarwal, has next argued that in the light of the observations made in this order, it may not be possible for the investigating agency or for the Court, should a trial be held, to give a finding in favour of, the police officers. This argument is, to my mind, totally misconceived. This order is based on the findings of the Sessions Judge and no independent views are expressed herein. As a matter of fact, the observations have been made with the sole purpose of giving some compensation to the heirs of Maninder Singh and nothing more. Nevertheless to allay Mr. Aggarwal''s apprehension it is effect the decision of any Court or authority seized of the matter.

Mr. Aggarwal has produced in Court at the time of arguments today a photo copy of a letter and the envelope in which it was received and addressed to the Senior Superintendent of Police, Sangrur (Punjab), allegedly written by Maninder Singh from Pakistan in April, 1994, which indicates that he was alive and well in that country. This letter and the envelope are also taken on the file in a sealed cover and this aspect of the matter shall also be considered during the investigation by the C.B.I. Records be released and put in the custody of Additional Registrar (Judicial) till the time they are handed over to the C.B.I.

JUDGMENT accordingly.