Kaka Singh vs Rajinder Pal Singh

R.L. Anand, J.

Shri Kaka Singh has filed the present criminal writ petition under Article 226 of the Constitution of India praying for the issuance of a writ in the nature of habeas corpus against Shri Rajinder Pal Singh, SHO Police Station Khamano, District Fatehgarh Sahib, directing him to immediately release the alleged detenus Sarvshri Gurmail Singh and Raghbir Singh.

It was alleged by the petitioner that on 15th June, 1998, SHO Rajinder Pal Singh respondent, accompanied by the other members of the Police Party came to his house at about 11 p.m. and took away Gurmail Singh along with him without being involved in any criminal case. Similarly on 16th June, 1998 the respondent again raided the house and took away with him Raghbir Singh, father of the petitioner, when no case was registered against him, and both the alleged detenus were in the illegal custody of the respondent.

This writ petition came up for hearing before Hon''ble Mr. Justice H.S. Bedi on 17th June, 1998 and his Lordship was pleased to appoint a Warrant Officer to search out the places pointed out by the petitioner as so to recover the alleged detenus.

The Warrant Officer raided the premises of Police Station Khamano on 17th June, 1998. On reaching there, the Warrant Officer disclosed his identity to the Munshi of the Police Station. While he was entering into the Police Station, the petitioner pointed out towards the alleged detenu Raghbir Singh, who was standing outside the outer gate of the Police Station. The Warrant Officer asked the Munshi about the other detenu Gurmail Singh, but he stated that he had no knowledge about him. Consequently, the Warrant Officer asked the Munshi of the Police Station to produce the roznamcha and simultaneously told the petitioner to search out the other detenu Gurmail Singh in the Police lock up as well as in the premises of the Police Station. The Warrant Officer stated checking the roznamcha in order to see if there was any entry pertaining to the arrest of Gurmail Singh in the roznamcha or not. In the meanwhile the petitioner succeeded in searching out Gurmail Singh in the Police Station premises. The Warrant Officer saw him with the petitioner just opposite to the office of the SHO towards the left inside the premises of the Police Station. It has also been observed by the Warrant Officer Shri Shambhu Nath that the SHO was not in the Police Station. He asked the Munshi as to why Gurmail Singh had been illegally detained in the Police Station. The Munshi did not give any reply. Rather he expressed his ignorance about it.

On the strength of the above report of the Warrant Officer, Shri Navkiran Singh, Advocate, appearing on behalf of the petitioner, submitted that firstly an inquiry should be made by a Judicial Officer in order to find out whether Shri Gurmail Singh was illegally detained by the respondent and in the meanwhile on the basis of the report of the Warrant Officer, compensation should also be awarded to the petitioner for the illegal custody of Shri Gurmail Singh. The counsel submitted that human liberty of the alleged detenu Gurmail Singh has been violated by the respondent and in these circumstances, the respondent is liable to pay compensation besides facing criminal proceedings. In support of his contention, learned counsel for the petitioner has invited my attention to Smt. Nilabati Behera alias Lalita Behera v. State of Orissa and others, 1994(1) Recent Criminal Reports 18, and submitted that since there was a violation of the fundamental right of life on the part of the respondent, therefore the State is liable to pay monetary compensation to the petitioner. The counsel submitted that it is not enough to relegate the petitioner or the victim to the ordinary remedy of civil suit in order to claim the damages.

I do not agree with the contention raised by the learned counsel for the petitioner. The judgment relied upon by the learned counsel for the petitioner cannot be made applicable to the facts in hand. So far as the violation of the human liberty is concerned, it is always of serious concern on the part of this Court, but before any inquiry can be ordered, it has to be established prima facie from the report of the Warrant Officer that the alleged detenu was in the illegal custody of the respondent. If the very ingredient for awarding compensation is missing, no compensation can be awarded to the petitioner, nor it can be ordered for holding a judicial inquiry. As per report of the Warrant Officer, when he was entering the Police Station, the petitioner pointed out towards Raghbir Singh, who at that time was standing outside the outer gate of the Police Station. Admittedly, the respondent was not present in the Police Station at that time. The Warrant Officer has not recorded any statement of Raghbir Singh at that time in order to point out if Shri Raghbir Singh had detected from the custody of the respondent. In these circumstances it cannot be said that Shri Raghbir Singh was found in the custody of the respondent inside the Police Station. With regard to Gurmail Singh, the report of the Warrant Officer is that it was the petitioner who succeeded in searching out detenu Gurmail Singh in the police station premises. For the first time the Warrant Officer saw Gurmail Singh standing just opposite to the office of the S.H.O. towards left side; of course inside the premises of the Police Station. The Police Station is a public office. Anybody can visit the Police Station either in connection with an official work or nonofficial work even. It is not established prima facie on the record that Shri Gurmail Singh was found in the illegal custody of the respondent. Admittedly his presence was not found inside the Police lock up. If Gurmail Singh had entered inside the Police Station after giving ditch to the Sentry of the Police Station; it cannot be said that there was an illegal detention of Shri Gurmail Singh at the behest of Shri Rajinder Pal Singh respondent. Once the alleged detention of the detenus is not established, the question of awarding compensation to the petitioner does not arise. Still if the petitioner feels that the alleged detenus were illegally detained by the respondent, the remedy would lie in the ordinary courts by filing a criminal complaint or by filing a civil suit for damages. The cited case was a case where admittedly there was custodial death. It was established prima facie that the personal liberty of the individual had been violated when that individual was in the custody of the Police. In these circumstances the prima facie negligence could be attributed to the authorities for violating the personal liberty of the deceased and the Hon''ble Supreme Court came to the conclusion that violation of personal liberty and freedom is a sensitive issue, which cannot be left in the lurch and the State authorities are bound to compensate with regard to the life of the deceased. Present is a case which is totally on different lines.

Resultantly, I do not find any merit in this writ petition. By holding that it is not a fit case for ordering a judicial inquiry or for awarding compensation to the petition, the petition is hereby dismissed.