Kulwant Singh vs State of Punjab

M.L. Singhal, J.

This is a criminal writ petition filed by Kulwant Singh petitioner under Article 226 of the Constitution of India whereby he prays for the issuance of a writ of habeas corpus directing respondents No. 1 to 4 to produce his son Sukhwinder Singh. In the alternative he has prayed for an enquiry by the District & Sessions Judge, Amritsar if they are unable to produce his son Sukhwinder Singh.

Now the facts in brief :

On 22.7.1990 petitioner''s son Sukhwinder Singh aged 22 years was abducted from his residence in the presence of certain respectables. He was informed that SHO Mohinder Singh had himself kidnapped his son. He went to SHO Mohinder Singh and saw his son in his custody at Police Station Majitha on 23.7.1990. Sh. Mohinder Singh asked for illegal gratification in the sum of Rs. 1.50 lacs for the release of his son. He did not agree to fulfil the demand of Sh. Mohinder Singh and as such his son was not released. His son''s whereabouts are not known to him since after 23.7.1990. He has not been heard of thereafter. He kept on knocking the door of the Deputy Inspector General of Police, Border Range, Amritsar and SSP Majitha accompanied by his co villagers and sought their help for securing the release of his son but to no effect. His son Bhupinder Singh sent a telegram to the Governor of Punjab on 28.7.1990 and the Director General of Police, Punjab, SSP Majitha and Deputy Commissioner Amritsar, copy Annexure P1, informing them about the arrest of Sukhwinder Singh on the night of 27.7.1990 at 10.30 PM unlawfully. He sent another telegram, copy Annexure P2 to the High Court of Punjab and Haryana on 9.8.1990 informing about the arrest of Sukhwinder Singh. He made a detailed representation, copy Annexure P3 to the Governor of Punjab on 18.9.1990 and requested for an enquiry into the abduction of his son Sukhwinder Singh by Sh. Mohinder Singh, SHO Police Station, Majitha. On the directions of Governor Punjab, Sh. Harbhupinder Singh, Executive Magistrate, Amritsar was appointed as Enquiry Officer for holding a Magisterial enquiry into the abduction of his son. He produced witnesses before the Executive Magistrate. In the month of February, 1991, the enquiry was finalised. He again sent a representation, copy Annexure P4 to the Governor of Punjab on 25.2.1991 requesting the grant of interview to him. He gave details of the enquiry conducted by the Executive Magistrate vide letter dated 13.3.1991 (Annexure P5); he was informed by the office of the Governor of Punjab that he should contact the Deputy Commissioner''s office, Amritsar regarding enquiry. It is alleged that he is in absolute darkness about the whereabouts of his son although 6 years period has elapsed. Since after 23.7.1990 he has not seen his son. He has been knocking every hearth and home in the quest of his son but to no effect. He and his family are in a sad predicament. Neither do they know that he is dead nor do they know that he is alive. They are in a state of grave suspense. If they are told that Sukhwinder Singh is no more, they may reconcile to their fate. Sh. Mohinder Singh abducted his son on account of lust for money, or for getting extra promotion because in those days when terrorism was at peak in the State of Punjab, such police officers used to be given handsome rewards and bounties in the shape of promotion etc. if they eliminated socalled terrorists and showed them to have been killed while having encounters with the police.

RespondentsState of Punjab contested the writ petition. It was denied that the petitioner''s son Sukhwinder Singh was abducted from his residence by SHO of Police Station Kathu Nangal. It was denied that any telegram was received by SSP Majitha regarding abduction of petitioner''s son. Enquiry was held into the alleged abduction of his son by Sh. Harbhupinder Singh, Executive Magistrate, Amritsar. In enquiry no police officer was found concerned in the kidnaping of the son of petitioner. Annexure R1 is the enquiry report. Petitioner became mum, after the submission of the enquiry report by Sh. Harbhupinder Singh, Executive Magistrate, Amritsar. It did not insinuate any police official regarding the alleged abduction of his son. The petitioner remained in slumber all these years. He woke up from slumber in July, 1996 when he filed this writ petition. Sukhwinder Singh was a man of dubious character and antecedents. He was accused in the following cases :

i) Case FIR No. 27 dated 22.3.90 u/s 302 IPC.

ii) Case FIR No. 48 dated 4.7.90 u/s 302 IPC.

iii) Case FIR No. 52 dated 14.7.90 u/s 307 IPC.

iv) Case FIR No. 55 dated 27.7.90 u/s 302 IPC.

v) Case FIR No. 57 u/s 307 IPC.

He was wanted in the said cases. He was declared proclaimed offender in Case FIR No. 55 dated 27.7.1990 ibid. He is evading arrest and has not been so far arrested. Annexure R2 is the order passed by the Court declaring him a proclaimed offender on 4.10.1993.

I have heard learned counsel for the petitioner, learned Deputy Advocate General Punjab, learned counsel for respondent No. 5 and have gone through the record.

Kulwant Singhpetitioner stated that his son was taken on 22.7.1990 by Sh. Mohinder Singh, SHO Police Station Kathu Nangal unlawfully. He saw his son Sukhwinder Singh on 23.7.1990 in the custody of Sh. Mohinder Singh at Police Station, Majitha. Learned Deputy Advocate General, learned counsel for respondent No. 5 submitted that in the enquiry held by Sh. Harbhupinder Singh, Executive Magistrate, Amritsar into the alleged abduction of petitioner''s son by Sh. Mohinder Singh, SHO Police Station Kathu Nangal, it was found that Sh. Mohinder Singh SHO Police Station Kathu Nangal was not at all involved in the abduction of Sukhwinder Singh and that Sukhwinder Singh''s father Kulwant Singh had insinuated Sh. Mohinder Singh, SHO Police Station Kathu Nangal because of some animosity. Sh. Harbhupinder Singh, Executive Magistrate, Amritsar found that at the time of alleged abduction of Sukhwinder Singh, Sh. Mohinder Singh was no longer SHO Police Station Kathu Nangal. He had already been transferred. Sukhwinder Singh was a militant owing allegiance of Babar Khalsa International, a militant outfit and he was an absconder.

Faced with this position, learned counsel for the petitioner submitted that the Executive Magistrate did not conduct the enquiry with an independent mind. He was part of State machinery. The entire State machinery was focussing all its energies to combat terrorism. If Sh. Harbhupinder Singh Executive Magistrate, had found against Sh. Mohinder Singh, SHO Police Station Kathu Nangal, his act would have been viewed with disfavour by executive government as impinging upon the effort of the State to combat terrorism by letting loose state terrorism. Learned Deputy Advocate General, Punjab/learned counsel for respondent No. 5 submitted that Kulwant Singh is at variance with his son Bhupinder Singh so far as the date of abduction of Sukhwinder Singh is concerned. According to Kulwant Singhpetitioner abduction took place on 22.7.1990 whereas according to Bhupinder Singh abduction took place on 27.7.1990 at about 10.30 PM. The fact, however, remains that Sukhwinder Singh has been missing since July, 1990. He has not been seen by any of his relations who would naturally have seen him had he visited village Chawinda Devi i.e. his own village. If Sukhwinder Singh was declared proclaimed offender in case FIR No. 55 dated 24.7.1990 under Section 302/34 Indian Penal Code and 25 of the Arms Act of Police Station, Kathu Nangal by the Magistrate vide order Annexure R2 dated 4.10.1993 that is of no consequence.

In the enquiry report itself, the Executive Magistrate has stated that petitioner''s son Sukhwinder Singh has been missing and his whereabouts are not known to those who would naturally have known his whereabouts if they had contact with him any time during this period.

Justice should not only be done but it should seem to have been done is a `legal maxim'' which governs every action of those who administer justice. The enquiry by the Executive Magistrate may not inject faith in Kulwant Singh about its being just and impartial. Acting on the maxim that justice should not only be done but it should appear to have been done, it is desirable that District & Sessions Judge, Amritsar is called upon to hold an enquiry into the circumstances leading to the disappearance of Sukhwinder Singh son of Kulwant Singh in July, 1990. Before a person is deprived of his life or personal liberty, the procedure established by law must strictly be followed and must not be departed from to the disadvantage of the person affected. It is the duty of the State to preserve the life of every person. It would, therefore, be in consonance with the object of Article 21 of the Constitution of India, if enquiry is marked to the District & Sessions Judge, Amritsar for going into the facts and circumstances leading to the disappearance of Sukhwinder Singh and the fate he met thereafter for the satisfaction of the kith and kin of Sukhwinder Singh. Therefore, District & Sessions Judge, Amritsar is directed to go into the facts and circumstances leading to the disappearance of Sukhwinder Singh and the fate that he met thereafter. He will submit his report to this Court on or before Ist July, 1998. He will record the evidence to be led before him.