Tarlochan Singh vs State of Punjab

V.K. Jhanji, J.

Criminal Writ Petition under Article 226 of the Constitution of India for the issuance of writ in the nature of habeas corpus for production of Kulwinder Singh @ Kid and for his release was filed by Tarlochan Singh Sidhu in this Court on 30.9.1989. In the petition, it was alleged by Tarlochan Singh Sidhu that some police personnel raided House No. 1752, Phase V, SAS Nagar (Mohali) where Kulwinder Singh @ Kid and Palwinder Singh @ Pola were allegedly staying. It was further alleged that Palwinder Singh @ Pola was the victim of police firing whereas Kulwinder Singh @ Kid was whisked away by the police personnel in the presence of Ajmer Singh, Harkirat Singh, Dhani Ram and others. On these allegations, petition was filed arraying the State of Punjab as respondent No. 1, and Surjit Singh Grewal, Inspector CIA staff, Patiala, Amarjit Singh, ASI, CIA staff, Patiala and S.H.O. Police Station, SAS Nagar (Mohali) as respondents 2, 3 and 4 respectively.

The State of Punjab did not file any reply to the petition, but respondents 2, 3 and 4 filed their respective reply and denied the allegations of whisking away of Kulwinder Singh @ Kid. It was the case of the answering respondents that in fact the said Kulwinder Singh @ Kid had escaped from the spot and was not traceable.

Since there was a serious dispute on facts, R.S. Mongia, J. on 19.6.1990, in order to find out the truthfulness of the version projected by the respective parties, entrusted an enquiry to the Chief Judicial Magistrate, Ropar. By a subsequent order dated 17.9.1990, S.S. Grewal, J. (as his lordship then was) with the consent of the parties transferred the enquiry to the District and Sessions Judge, Chandigarh with a direction that the report be submitted expeditiously. In compliance of the said order, the enquiry was conducted and the learned Sessions Judge after giving due opportunity to the parties submitted a detailed report dated 29.4.1995 and concluded as follows :

"23. In this perspective the version of the police that Kulwinder Singh alias Kid escaped when they were in the process of capturing him from House No. 1752 of Amarjit Kaur in Phase V, Mohali, without any member of the party which was fully armed and had taken positions waiting for him to come to the house, being able to fire even a single shot at him to prevent him for so doing, cannot be accepted as correct.

On the contrary, the evidence both direct and circumstantial, as discussed above, inevitably points to the conclusion that Kulwinder Singh alias Kid was effectively captured from House No. 1752 and whisked away in the jeep parked at some distance from the aforesaid house to some undisclosed destination and his nonproduction before the Hon''ble High Court is indicative of his elimination in flagrant violation of law of the land and the version of his escape in the process of his capturing has been put forward by the Police party headed by Surjit Singh Grewal of which ASI Amarjit Singh was also a member apart from other police officials only as an excuse to avoid their accountability to the process of law which inter alia enjoined them to protect his life and not to deprive him even of his liability except in accordance with law."

On receipt of the report, notices were again ordered to be issued to the respondents. Since respondents 2 and 3 against whom a primafacie case had been found had not filed any objections to the report of the learned Sessions Judge, on 22.2.1996 learned counsel for the State sought time to seek instructions from the Home Secretary, Punjab in regard to the action to be taken by the Government of Punjab on the report of the Sessions Judge against the erring police officials. At the request of State counsel, the matter was adjourned to 25.3.1996, on which date he sought another adjournment which was allowed. On 2.5.1996, last opportunity was given to him as he had failed to place on record any decision of the Government. A copy of the report was also directed to be sent to the Director General of Police, Punjab, Chandigarh. On 14.5.1996, again an adjournment was sought, though on the last date of hearing it had been made clear to the State counsel that no further adjournment would be given. However, considering the matter to be sensitive, the Home Secretary, Punjab was directed to be present in Court on the next date of hearing to explain the reasons for not taking any decision on the report of the Sessions Judge. On 23.5.1996, Mr. M.L. Sarin, learned Advocate General, Punjab appeared along with the Home Secretary, Punjab and gave an undertaking that the decision of the Government would be placed on record within two days. On 27.5.1996, instead of placing on record any decision of the Government with regard to action to be taken against the police officials, the State of Punjab filed an affidavit of Sh. Manjeet Singh Narang, Under Secretary to Government of Punjab, raising objections to the enquiry report of Sessions Judge. On the basis of objections, in para 6 of the affidavit the Under Secretary gave the following conclusions :

(i) That the petitioner''s version of the occurrence is not natural and probable and shows consistent changes and conscious improvements at various stages and thus is not worth relying upon;

(ii) That none of the witnesses projected as eyewitnesses by the petitioners were actually physically present on the spot when the occurrence took place and learned Sessions Judge has erred by reposing confidence in their testimony;

(iii) that the learned Sessions Judge has erred in not paying due consideration to a very crucial document, i.e. the representation of the petitioner to Hon''ble President of India.

On these conclusion, it was submitted that the enquiry report of the Sessions Judge be set aside and the police version be upheld. On going through the report, objections filed by the State of Punjab and after giving thoughtful consideration to the submission of counsel for the State, I am of the view that at this stage the Court is not required to go into the merits of the report or the objections raised by the State. The purpose of entrusting the enquiry to the Sessions Judge, Chandigarh, was to find out as to whose version, i.e. petitioner''s or police, was correct. In other words, this Court wanted to satisfy itself whether there was sufficient material to order prosecution of the police officials for the alleged abduction and elimination of Kulwinder Singh @ Kid. The learned Sessions Judge after having given opportunity to the parties to lead evidence and hearing the counsel for the petitioner, police officials and the State of Punjab has given a detailed report. In his report, the Sessions Judge has held Surjit Singh Grewal, DSP, who headed the police party of which Amarjit Singh, ASI and other police officials were also the members, primafacie responsible for alleged abduction and elimination of Kulwinder Singh @ Kid. It is really strange that despite the findings of the Sessions Judge, the State with whom responsibility to maintain the rule of law lies and is under a constitutional mandate to protect the life of every citizen instead of considering the report impassively has come forward with the objections to espouse the cause of the private respondents. This role of the State is not appreciable.

The question now remains to be decided as to what relief the petitioner is entitled to. In this regard, counsel for the petitioner has contended that a direction be issued to the Central Bureau of Investigation (CBI) to register a case against all members of the police party; the State be directed to grant sanction for the prosecution of police officials within one month of the registration of the case; all the police officials found responsible in the report of Sessions Judge be immediately suspended so that they are not able to win over the witnesses or hamper the trial; and an amount of Rs. 5 lacs be granted to the legal heirs. Against this, counsel for the State has contended that this is not one of those cases where a direction is required to be issued to CBI to register the case. He has also objected to the allowing of other prayers put forth by the counsel for the petitioner.

Having heard the learned counsel at length on this matter, I am of the view that as a primafacie case has been made out against Surjit Singh Grewal, DSP Amarjit Singh, ASI and other police officials were also members of the police party for their prosecution under the relevant provisions of the Indian Penal Code, a direction is required to be given to some Agency to register a case against them. Since the State of Punjab has failed to take any decision in regard to the prosecution for aforesaid police officials though sufficient opportunities were given to the State, I have been left with no other option except to direct the Central Bureau of Investigation, Chandigarh to register a case on the basis of the report of the Sessions Judge, Chandigarh against the police officials who were members of the police party that allegedly abducted and eliminated Kulwinder Singh @ Kid. It is ordered accordingly. After investigation, the CBI shall file necessary challan in accordance with the provisions of Code of Criminal Procedure before a competent Court at Chandigarh. As and when asked by the CBI, the State of Punjab shall accord necessary sanction as provided under Section 197 Cr.PC for the prosecution of the police officials. The prayer of the petitioner to award compensation to the parents, wife and minor son of Kulwinder Singh @ Kid also deserves to be allowed. In Inder Singh v. State of Punjab, 1995(3) Recent Criminal Reports 543 (SC) : 1995(3) Supreme Court Cases 702 , in para 11 the Apex Court has held " when the police force of a State acts as the Punjab Police has done in this case, the State whose arm that force is must bear the consequences. It must do so in token of its failure to enforce law and order and protect its citizens and to compensate in some measure those who suffered by reason of such failure." In the light of judgment of the Apex Court in Inder Singh''s case (supra) and also a decision of the Apex Court in Civil Appeal No. 7242 of 1993 (Punjab and Haryana High Court Bar Association v. State of Punjab and others) dated 10.5.1996 where a sum of Rs. ten lacs was awarded as compensation to the parents of one Kulwant Singh, Advocate, the State of Punjab in this case is directed to pay a sum of Rs. three lacs to the legal heirs within 3 months from today. Out of this amount, a sum of Rs, 50,000/ each shall be given to Tarlochan Singh Sidhu (father) and Nachhattar Kaur (mother). The remaining amount of Rs. two lacs shall be paid in equal share to Ravinder Kaur (wife) and Randeep Singh (minor son aged six years). The share of the minor shall be kept in fixed deposit in some Nationalised Bank, earning maximum interest, by the Registrar of this Court. The amount shall be disbursed to the minor on his attaining majority. The mother of the child, i.e. Ravinder Kaur, shall be entitled to withdraw the interest thereon for the upkeep of the minor. In the event of conviction, the amount of compensation shall be recovered personally from those who may be held guilty. The writ petition qua respondent No. 4 shall stand dismissed. A copy of this order along with the report of the Sessions Judge, Chandigarh, be immediately forwarded to the CBI, Chandigarh for taking necessary action in accordance with this order.

This writ petition along with all misc. petitions stand disposed of.