Hazoora Singh vs State of Punjab and others

V. K. Bali, J.

This order shall dispose of two Criminal Misc. Petitions, bearing Nos. 20719M of 1995 and 223 of 1996. The prayer in the first Criminal Misc. Petition No. 20719M of 1995 is for cancellation of regular bail granted to respondents 2 to 10 by the learned Sessions Judge, Hoshiarpur, whereas prayer in Crl. Misc. Petition No. 223 of 1996 is for transfer of the case titled as ''State v. Lakha Singh'' from the Court of Sessions Judge, Hoshiarpur, to some other Court.

Petitioner is father of one Bagicha Singh, who was allegedly eliminated by respondents 2 to 10, whose bail is sought to be cancelled. Whereas, it is positive case of the petitioner that his son Bagicha Singh was killed in police custody i.e. in the custody of respondents 2 to 10, the case of the said respondents is that he was a hardcore terrorist and he escaped from the police custody while he was being taken for the purpose of recovery of arms. Earlier in point of time, petitioner filed Crl. Writ Petition in this Court praying therein that the enquiry may be got conducted by some independent agency. The learned Single Judge of this Court directed that the enquiry be conducted by the Sessions Judge, Hoshiarpur. Consequently, the enquiry was conducted and it was found, although prima facie, that "it would be safe and reasonable to conclude that the version with regard to the escape of Bagicha Singh from the custody of the police party headed by Inspector Lakha Singh, SHO, on 6.3.1993 at about 8 PM while being taken to Bariana Choe for the recovery of stengun is inherently infirm and too unnatural and improbable to be believed as correct and it seems to have been put forward with a view to justify the nonproduction of Bagicha Singh before the Court of Miss Manju Bala, Judicial Magistrate, Hoshiarpur, on 8.3.1993, on the expiry of police remand and in all probability, Bagicha Singh was eliminated by the police party." After the report of enquiry was submitted, the respondents herein applied for grant of anticipatory bail before the learned Sessions Judge which was allowed. On a petition filed by Hazoora Singh, praying for cancellation of anticipatory bail, this Court accepted the said prayer and cancelled anticipatory bail granted to the respondents by the Sessions Judge, Hoshiarpur. This order was passed on July 11, 1995. Thereafter, the respondents, it is made out from the records of the case, made some sort of application before the State Government that till such time there was sanction to prosecute them, they could not be arrested and prosecuted. The application was dismissed on October 28, 1995. On October 30, 1995 they surrendered and vide orders dated November 22, 1995, they were allowed regular bail by the Sessions Judge, Hoshiarpur. The prayer in the petition, as referred to above, is for cancellation of regular bail granted to the respondentsaccused.

In the other Crl. Misc. Petition filed for transfer of the case from the Court of Sessions Judge, Hoshiarpur to some other Court, some serious allegations have been made against the Sessions Judge, seized of the matter and a prayer has been made that the case should be transferred from his Court and should be entrusted to some other Court.

In pursuance of the notice having been issued by this Court, reply has been filed in Crl. Misc. No. 20719M of 1995.

This case earlier came up before this Court on January 12, 1996 and after hearing arguments for considerable time, the following order was passed :

"Arguments in this case have been heard for considerable time. It appears to the Court that after passing of the order by the Sessions Judge granting bail to the respondents herein, the prosecution case, as per report under Section 173 of the Code of Criminal Procedure, mainly rests upon the statements of Madan Lal and Rajiv Kohli. These two main witnesses of the prosecution have retracted from their earlier statements while making supplementary statements on 11th of November, 1995, all the respondents herein were in judicial lockup. Mr. Navkiran Singh, learned counsel appearing for petitioner, however, contends that besides relying upon the statements of these two witnesses, the prosecution has other evidence to link up the accused with the crime. He, however, seeks time to go through such evidence for putting in effective arguments in the matter. In the interest of justice, this case is adjourned to 19.1.1996."

Mr. Navkiran Singh, learned counsel for the petitioner has now apprised the Court of the other evidence that has been collected by the prosecution with a view to bring home the offence against all the respondents. His basic reliance is upon the statement of the petitioner and also a judgment of the Supreme Court in State of Madhya Pradesh v. Shyamasunder Trivedi & Ors., JT 1995(4) SC 445.

Mr. R. S. Surjewala, learned counsel appearing for the respondent accused has obviously opposed the prayer of the petitioner for cancellation of bail and besides relying upon statements of prosecution witnesses, who have resiled, he also states that no conviction can be sustained on the kind of evidence that forms subject matter of police report under Section 173 of the Code of Criminal Procedure. He also relies upon a judgment of the Supreme Court in Bhagirath Judeja v. State of Gujarat, AIR 1984 SC 372.

I have heard learned counsel for the parties and gone through the records of the case. The matter has been argued before this Court on the basis of statements of various witnesses, who are likely to depose at the time of trial as also the law that might apply with regard to appreciation of evidence in a case of this kind. This Court is of the clear view and it is not being disputed by learned counsel representing the parties as well that if the evidence that is likely to come and the law applicable is appreciated at this stage and some findings are recorded, even though prima facie, it is bound to prejudice either of the parties at the time of trial. That being the situation, this Court would not like to appreciate all these arguments at this stage as the decision in the matter, one way or the other, may virtually seal the fate of this case. That being so, the prayer of the petitioner for cancellation of regular bail granted to the respondents is dismissed. It is, however, a case where directions need to be issued and are accordingly issued that the trial, which is stated to be fixed for February 5, 1996, must be concluded expeditiously. Not only that, the Judge, seized of the matter, is directed to record daytoday proceedings insofar as it may be possible and conclude the trial latest within three months from the next date of hearing i.e. 5.2.1996.

I have gone through the allegations levelled against the Sessions Judge, Hoshiarpur in support of the prayer of the petitioner for transfer of the case from his Court to some other Court. There may not be any substance in the same but the facts of this case and, in particular, that the respondents herein were allowed anticipatory bail by the Sessions Judge, Hoshiarpur, which was later cancelled by this Court as also the fact that he has granted regular bail to them and the other things that have been mentioned in the petition, in view of this Court, are sufficient for a citizen to apprehend that justice may not be done to him. On the maxim that justice must not only be done but it must appear to have been done, I deem it proper to order transfer of this case from the Court of Sessions Judge, Hoshiarpur to that of Additional Sessions Judge (I), Hoshiarpur, who would abide by the directions, mentioned above.

Copies of this order be sent to the Sessions Judge as also the Addl. Sessions Judge (I), Hoshiarpur, forthwith, for compliance.