& Haryana High Court Bar Assn. Vs. State of Punjab  INSC 518 (7
AGRAWAL, S.C. (J) AGRAWAL, S.C. (J) KULDIP SINGH (J) CITATION:
1994 AIR 1023 1994 SCC (1) 616 1993 SCALE (4)636
1. Special leave granted.
This appeal is a sequel to an unfortunate occurrence dated January 25, 1993, wherein Kulwant Singh, Advocate, practising
at the District Courts, Ropar, his wife and a child aged about two years were
alleged to have been abducted and murdered. The lawyer fraternity in general
and the advocates practising at the High Court and the District Courts in the
States of Punjab, Haryana and the Union Territory of Chandigarh were not
satisfied with the police investigation. The Punjab and Haryana High Court Bar
Association (Bar Association) demanded a judicial inquiry into the occurrence
by a sitting Judge of the High Court or a District Judge or a Vigilance Judge
belonging to the higher judiciary. Their demand, having not been acceded to by
the State Government, the Bar Association went on indefinite strike with effect
from February 6, 1993. Later on, the District Bar
Associations in the States of Punjab, Haryana and the Union Territory of Chandigarh
also went on strike thereby stopping the functioning of the courts throughout
the jurisdiction of the Punjab and Haryana High Court. An action
committee formed by the Bar Association held an inquiry into the matter and
submitted its report on February
14, 1993. The report
is reproduced hereunder:
OF THE KILLING OF MR KULWANT SINGH, ADVOCATE, HIS WIFE AND TWO YEAR OLD SON Bar
Association of Punjab and Haryana High Court formed an 'Action Committee' for
the release of Mr Kulwant Singh, Advocate, his wife and two year old son, who
were alleged to have been abducted/detained by the Ropar Police on January 25,
brief facts regarding detention/abduction of Mr Kulwant Singh, Advocate and his
family and child are Mr Kulwant Singh was trying for the release of one Mrs Manjit
Kaur and her minor son who were being illegally detained by Ropar Police. Manjit
Kaur belonged to the village Budha Bora and Mr Kulwant Singh also belonged to
the same village. The Panchayat of said village had requested Mr Kulwant Singh,
Advocate to get Manjit and her son released from illegal custody of the police.
On January 25, 1993 at about 9.25 p.m. Mr Kulwant Singh rang up the police
station to check up whether Manjit Kaur and her minor son had been released or
not. He was told that two had been released and he could come and take them as
the police wanted to hand them over to some responsible person. As a lady was
to be brought, Mr Kulwant Singh told his wife to accompany him to the police
station. There was no one to look after the child as Mr Jagir Singh, Kulwant
Singh's father was 618 the only one left behind in the house and as such the
child was also taken along with by Mr Kulwant Singh to the police station. Mr Kulwant
Singh and his family left for the police station, Ropar at about 9.30 p.m. in their Maruti car and have not been heard of since
then. Mr Jagir Singh, father of Mr Kulwant Singh, met the President of the Ropar
District Bar Association and informed him about the whole thing. The two then
contacted the SHO, Police Station Ropar and also DSP Ropar. Mr Jagir Singh then
met the SSP. The SSP told Mr Jagir Singh that Mr Kulwant Singh is not in the
custody of Ropar Police and that he may have been taken away by police of some
five members led by Convener of Action Committee visited Ropar on February 4, 1993 and met the members of the local
Bar Association. They then met the Deputy Commissioner, Ropar at his residence
and told him about their concern regarding Mr Kulwant Singh and his family.
told the Action Committee members that he had checked up with the local police
and that Mr Kulwant Singh and his family have not been picked up by the Ropar
Police. The police has nothing against him as he is not involved in any crime.
He said that the police sent wireless messages all over Punjab and that some information regarding
Mr Kulwant Singh and his family will come soon.
Action Committee members then met the SP Operation Ropar as the SSP was not
there. The SP told the Action Committee that he had never heard of Mr Kulwant
Singh and the Ropar Police had nothing against him and neither is he wanted by
the Ropar Police.
On February 5, 1993 the Action Committee members met
the Chief Minister, Punjab in the morning. The Chief Minister
also told them that he will enquire into the whereabouts of Mr Kulwant Singh
and that the Action Committee may contact him on February 9, 1993. The High Court Bar went on strike the same day.
On February 6, 1993, the Action Committee met the SSP Ropar.
The SSP told the members that Mr Kulwant Singh was not in the custody of Ropar
Police. However, he said that one Lucky a known terrorist and another Lucky,
son of Manjit Kaur surrendered before the Police at Patiala and Ropar respectively and that the
interrogation of both is on. He also assured the members that ... something ...
will inform the members about it.
On February 7, 1993 Shri Navkiran Singh the member of
the Action Committee was told by the SSP on telephone that Mr Kulwant Singh and
his wife and two year old son have been killed and that he will give the
details tomorrow morning.
On February 8, 1993, the SSP informed the President of
the Bar that Lucky had confessed that Mr Kulwant Singh and his family have been
killed by him and one Surjit Singh, as both wanted to surrender before the
police and Mr Kulwant Singh was against it because he thought that the
surrender would expose him.
The police story as told by the SSP is unbelievable. There are glaring
loopholes which cannot be plugged easily. The dead bodies of the three have not
been found till date. The car has been recovered but its stereo, stepnee and
its number plate are missing. It is for the first time in the history of Punjab terrorism that the terrorists have
tried to hide their crime by picking and throwing the dead bodies in the canal.
The terrorists would not have removed the stereo and stepnee and thrown the car
in the canal. The very purpose of terrorist crime is defeated if the crime is
hidden, because the motive behind the terrorist crime is to terrorise. It is
pertinent to mention here that the culprits surrendered before the police on
the same day after the High Court Bar raised a hue and cry about the
whereabouts of Mr Kulwant Singh and his family. It is rather strange that the
same police which was declaring on the roof tops that they have nothing against
Mr Kulwant Singh is now claiming in the same breath that Mr Kulwant Singh was
the kingpin and that he wanted to kill Beant Singh in the near future and also
blast Ropar Thermal Plant. The substantial evidence goes to prove that Ropar
Police is responsible for the brutal killing of Mr Kulwant Singh, his wife and
his two years old son. Sd/- Action Committee Kulwant Singh Murder Case 1. Gian
Chand Dhuriwala, Convener.
Ajay Pal Singh, Secretary.
Ranjan Lakhanpal, Puran Singh Hundal, Amar Singh Chahal, H.S. Gill, Rajvinder
Singh Bains, Harbhajan Singh, Navkiran Singh, J.C. Verma, Surinder Lamba, R.S. Tacoria
and K.C. Azad. Chandigarh, 14 February, 1993" 3.The statement of Harpreet
Singh alias Lucky, son of Gurmeet Singh Saini,aged 20 years was recorded by Shri
Sohan Lal, Superintendent, Police Headquarters, Ropar on February 14, 1993. It
would be useful to reproduce the said statement hereunder:
of Harpreet Singh @ Lucky s/o Gurmeet Singh Saini aged 20 years in connection
with case FIR No. 10 dated February 8, 1993
under Sections 364/302/201 IPC and 3/4/5 of TADA (P) Act Police Station Rupnagar, District Ropar.
reside in village Bahadurpur. We two brothers and one sister and my parents are
alive. I studied up to primary at my village Bahadurpur and after doing 10th
class from Government High School, village Lodhi Majra I passed 10 + 1 from D.A.V. Public School Ropar and then I did two years course as turner from I.T.I.
While studying at village Lodhi Majra I became friend of Kulbir Singh r/o Ghanauli
and Kuldip Singh r/o Lodhi Majra. Kulbir Singh of village Ghanauli is running a
shop of repairing and selling watches at village Nuhon. Kulbir Singh got him
620 introduced to Kulwant Singh Saini, a lawyer of Ropar.
Singh Saini, Advocate thereafter got him introduced to one Gurmeet Singh
militant of K.L.F. (Khalistan Liberation Force) outfit. About 1 1/2 months ago
I, Kuldip Singh r/o Lodhi Majra, Surjit Singh of Attari, Gurmeet Singh Chhota Fauji,
Kulbir Singh of Ghanauli and Kulwant Singh Saini, Advocate conspired to kill
Chief Minister of Punjab by getting explosives in a truck and by exploding the
same truck on the road side. Thermal Plant of Ropar was decided to explode with
a bomb and it was decided to commit mass killing of people belonging to
particular community at Ropar and Ghanauli. Since before this I and Surjit
Singh of Attari had committed murder of Comrade Ram Murti with bullets and
police had come to know about this thereafter police had started visiting my house
in my search. Myself and Surjit Singh went to the house of Kulwant Singh,
Advocate and told him that we wanted to surrender before the police. Kulwant
Singh, Advocate replied that 'you would not surrender'. He said 'if you would
surrender the entire people would be unfolded and neither Thermal Plant could
be exploded nor the Chief Minister could be eliminated. Nor people of one
community would also be killed.' He also stated that if we surrendered then we
(myself and Surjit Singh) along with our families would be got killed by
militants. He also stated that 'you would not go out of militants
organization'. I and Surjit Singh conspired and thereafter summoned Kulwant
Singh to Bela Chowk on the pretext of holding community. Kulwant Singh Saini,
Advocate along with his wife and child came in a Maruti car on the fixed time.
I and Surjit Singh sat in his car and took him to floating restaurant at Sihhand
on the pretext of holding community. On having occasion we killed Kulwant
Singh, Advocate, his wife and kid with bullets and thereafter dead bodies along
with car were thrown in Bhakhra canal. After few days I disclosed this fact to Avtar
Singh Nambardar to produce him before the police. I have got recovered the car
of Kulwant Singh after disclosing the place of occurrence to the police.
& A.C. Sd/- Sd/-- Harpreet Singh (Sohan Lal) Supdt. of Police
Headquarters, Ropar February
14, 1993 I verified
that accused Harpreet Singh @ Lucky son of Gurmeet Singh Saini r/o Bahadurpur
District Rupnagar has made above confessional statement in may presence which
he has made with free will. Whatever Harpreet Singh stated only that has been
(Sohan Lai) Supdt. of Police Rupnagar."
Suresh Kumar, son of Shri Som Parkash, resident of Ambala (Haryana) filed Civil
Writ Petition No. 2376 of 1993 before the Punjab and Haryana High Court in public interest.
law points and the prayers in the said writ petition were as under:
the following law points involved in this writ petition require consideration
by this Hon'ble Court:
Whether it is in the interest of the respondent that doubts regarding mystery
surrounding gruesome murder be unearthed and the truth brought out by judicial
inquiry? (II) Whether the interest of justice requires that a judicial inquiry
be conducted by a sitting Judge of the High Court or a District Judge or a
Vigilance Judge especially when the interests of the litigating masses are
suffering? It is, therefore, prayed that a writ in the nature of Mandamus may
be issued to the respondent directing them to order a judicial inquiry by a
sitting Judge of the High Court or a District Judge or a Vigilance Judge
belonging to the higher judiciary to go into the circumstances in which the
gruesome murders of late Shri Kulwant Singh, Advocate of Ropar, his wife and
minor child took place.
other relief which this Hon'ble
Court deem proper and
any direction befitting the occasion may kindly be issued."
5. On March 3, 1993, a Division Bench of the High Court
issued notice of motion returnable on March 12, 1993. The High Court also issued notice
to the Bar Association of the High Court of Punjab and Haryana through its
President and to the Bar Council of Punjab and Haryana through its Chairman.
Both the associations were directed to be impleaded as parties to the writ
petition. On March 16,
1993, the Division
Bench of the High Court passed the following order:
on behalf of the respondents are allowed to be placed on record.
petition raises substantial questions of law of obvious general public interest
and importance. We consequently admit it to a Full Bench with a request to the Hon'ble
Chief Justice that considering the urgency of the issues involved, the matter
be placed before the Full Bench at the earliest. Sd/- Sd/- (V.K. Bali) (S.S. Sodhi)
Judge Judge March 16,
1993." 622 The
writ petition was finally heard by a five-Judge Bench of the High Court and was
dismissed as withdrawn by a speaking order dated March 19, 1993.
G.S. Grewal, Senior Advocate appearing for the Punjab and Haryana High Court Bar Association, Mr H.S. Hudda,
Senior Advocate appearing for the Bar Council and Mr S.C. Mohanta, Senior
Advocate appearing for various other Bar associations vehemently contended
before the five-Judge Bench of the High Court that the writ petition was in the
nature of a public interest litigation and the same could not be allowed to be
withdrawn. It was further argued that since the lawyers in the States of
Punjab, Haryana and the Union Territory of Chandigarh were on strike for more
than six weeks and were demanding an independent inquiry into the mysterious
and tragic death of Kulwant Singh, Advocate and his family, it would be in the
interest of justice to finally adjudicate on the points raised in the writ
petition. The Bench, however, rejected the contention and dismissed the writ
petition as withdrawn on the following reasoning:
may point out, at the outset, that in our view the tone and tenor of the
petition as framed by the petitioner is the hardship caused to the litigant
public due to the strike by the members of the Bar. The real emphasis in our view,
is on the situation arising out of the lawyers strike. While referring to the
strike, the petitioner has no doubt mentioned about the disappearance of Mr Kulwant
Singh, his wife and their minor child in mysterious circumstances and demand of
the members of the Bar that a judicial inquiry be ordered. This, in our view,
is the background for the members of the Bar to go on strike.
other hand, the written statement filed on behalf of the High Court Bar
Association seeks to raise much larger issues. In other words, the tenor of the
written statement filed by the Bar Association and the Bar Council is
materially different from the petition as originally framed.
view, there is a vital distinction between the original petition filed by the
petitioner and the stand taken by the added respondents. Reading between the lines, the reference of
the former is to save the 'litigant' and that of the latter is to save the
'lawyer'. In one case the relief is claimed against the members of the Bar and
in the other the relief is claimed against the State. We do not think that we
could be justified in permitting the proxy war in the name of litigation styled
as public interest litigation when the real sufferer is the litigant public.
Ordinarily one would expect a broad identity of interest in the litigant and
the lawyer which is lacking in the present case.
the purpose of the present matter, it is not necessary to go into the larger
question as to the parameters of public interest litigation in general. What
appears to be settled position of law is that whereas any person can set the
criminal law into motion, no stranger can challenge conviction or other adverse
order recorded against a person under the garb of public interest litigation.
Such action can be taken by the person 623 concerned and where such person is
under a disability, by his next friend etc. This in addition to the fact that
the Court on its own is bound to provide a counsel to the accused at the State
expense. Since the matter relating to alleged murder of Mr Kulwant Singh and
his family members is sub judice, no stranger can maintain a petition under the
garb of public interest litigation.
it from another angle, the mere fact that the Motion Bench has admitted the
writ petition of Suresh Kumar for consideration of the Full Bench does not
necessarily conclude the question whether, in fact, the writ petition relates
to a matter of public interest litigation. It was only a prima facie view of
the matter that the writ petition was admitted, which the petitioner now seeks
to withdraw. It is axiomatic that no order of the Court can prejudice the
parties to the lis. Therefore, the admission of the writ petition by itself
will not convert the petition of Suresh Kumar into public interest litigation.
aware of the essential role which the Bar has to play in the present day system
of justice. No one who is interested in public welfare can be happy about the
strike which has gone on for over six weeks and threatens to continue
indefinitely in the future. The real sufferer is the litigant public. We
therefore, appeal to all the Associations of the Bar to call off the strike and
avoid the hardship to the litigant public.
view of the aforesaid factual and legal position, we have no option but to
allow civil miscellaneous application of the petitioner seeking withdrawal of
his writ petition. The same is accordingly dismissed as withdrawn."
This appeal by way of special leave is by the Bar Association through its
Secretary against the five-Judge Bench judgment of the High Court.
have heard Mr Rajinder Sachar, learned counsel for the appellant. We have also
heard Mr G.K. Chatrath, learned Advocate-General for the State of Punjab. It is not necessary for us to go
into the question as to whether the writ petition before the High Court was for
bringing an end to the lawyers strike or to appoint an independent inquiry-
agency to probe into the disappearance and alleged murder of Kulwant Singh,
Advocate and his family. Be that as it may the fact remains that the five-Judge
Bench of the High Court was seized of the matter wherein the issues regarding
the abduction and alleged murder of Kulwant Singh, Advocate and his family were
raised before it. The report of the "Action Committee" of the Bar
Association, statements recorded by the police including that of Harpreet Singh
@ Lucky and other relevant documents were before the High Court. The High Court
was wholly unjustified in closing its eyes and ears to the controversy which
had shocked the lawyer fraternity in the region. For the reasons best known to
it, the High Court became wholly oblivious to the patent facts on the record
and failed to perform the duty entrusted to it under the Constitution. After
giving our thoughtful consideration to the facts and circumstances of this
case, we are of the view that the least the High Court 624 could have done in
this case was to have directed an independent investigation/inquiry into the
mysterious and most tragic abduction and alleged murder of Kulwant Singh,
Advocate and his family.
are conscious that the investigation having been completed by the police and
charge-sheet submitted to the court, it is not for this Court, ordinarily, to
reopen the investigation. Nevertheless, in the facts and circumstances of the
present case, to do complete justice in the matter and to instil confidence in
the public mind it is necessary, in our view, to have fresh investigation in
this case through a specialised agency like the Central Bureau of Investigation
We, therefore, direct the CBI to take up the investigation of the case FIR No.
10 dated October 8,
1993 under Sections
364/302/201 IPC and 3/4/5 TADA (P) Act, Police Station Rupnagar,
District Ropar with immediate effect. We further direct the Senior
Superintendent of Police, Ropar and the Station House Officer, Police Station Rupnagar
to assist the CBI in conducting the investigation.
CBI shall exercise all the powers available to it under the Criminal Procedure
Code and any other provision of law.
State of Punjab through its Home Secretary is
further directed to provide all assistance to the CBI in this respect.
direct the Director, CBI to depute a responsible officer to hold the
investigation as directed by us. This may be done within one week from the
receipt of this order.
CBI shall complete the investigation within three months from the date of
receipt of this order by the Director and submit its report in accordance with
law. The proceedings before the Additional District and Sessions Judge, Ropar,
shall remain stayed till March
31, 1994. The appeal
is, thus, disposed of.