Punjab
& Haryana High Court Bar Association Vs. The State of Punjab & Ors [1996] INSC 738 (10 May 1996)
Kuldip
Singh (J) Kuldip Singh (J) Faizan Uddin (J)
CITATION:
1996 SCC (4) 742 1996 SCALE (4)416
ACT:
HEAD NOTE:
O R D
E R
This
Court by the order dated December
7, 1993 directed the
Central Bureau of Investigation (CBI) to investigate into the mysterious and
most tragic abduction and alleged murder of Kulwant Singh, Advocate, his wife
and their two year old child. This Court noticed the inaction on the part of
the High Court in the following words:
"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
could have done in this case was to have directed an independent
investigation/enquiry into the mysterious and most tragic abduction and alleged
murder of Kulwant Singh Advocate and his family." The operative part of
the order dated December
7, 1993 was as under:
"We,
therefore, direct the CBI to take up the investigation of the case F.I.R. No.10
dated 8 10.1993 under sections 364/302/201, I.P.C. and 3/4/5 T.A.D.A. (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. The CBI shall exercise all the powers available
to it under the Criminal Procedure Code and any other provision of law. The
State of Punjab through its Home Secretary is
further directed to provide all assistance to the CBI in this respect.
We
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. The 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 Addl. Distt. & Sessions Judge, Rupar, shall remain
stayed till March 31,
1994." This Court
granted extension to the CBI from time to time for the completion of the
investigation. The CBI submitted the final report to this Court on March 7, 1996 whereunder following actions have
been recommended:
"i)
Harpreet Singh @ Lucky s/o of Gurmit Singh Saini, r/o Vill. Bahadurpur, who is
presently facing trial in case FIR No.10/93 of PS Sadar Ropar in the Designated
Court, Nabha has been falsely implicated in the case.
ii) SI
Avindervir Singh, ASI Darshan Singh, Inspr. Balwant Singh and DSP Jaspal Singh
are prima- facie responsible for the false implication of Harpreet Singh @
Lucky in the aforesaid case and are liable for prosecution for offences U/S
194, 194, 211 and 218 IPC.
iii)
The State Government of Punjab is to be requested for taking
suitable action against Shri Sanjiv Gupta, DIG, Punjab Police for his lack of
supervision." Mr. Navkiran Singh, Advocate, appearing for the Punjab and Haryana High Court Bar
Association has vehemently contended that there is sufficient material on the
record to prosecute the police officers for the abduction and murder of Kulwant
Singh, Advocate and his family. He has invited our attention to the following
paragraphs from the CBI report:
"6.
Now the question arises, if Harpreet Singh @ Lucky had not abducted and
murdered Kulwant Singh. Advocate and his family, then what happened to them.
The evidence of the family members of Kulwant Singh Advocate is there to show
that Kulwant Singh had talked to PS City, Ropar on telephone at about 9.30 PM on 25.1.93 and left the house alongwith his wife and
son to the said police station for bringing Manjit Kaur and her son who were
reportedly detained by the police. It is also in their evidence that he left
the house in his Maruti Car No.DAQ-3804. Certain shop keepers/vendors falling enroute
from the house of Kulwant Singh to PS City Ropar were examined but nobody
confirmed that they had seen Kulwant Singh, Advocate and his family going to PS
City, Ropar in his Maruti Car. It is a fact that Manjit Kaur and her son were
there in PS City, Ropar on 25.1.93 night, although she and her son are denying
it. Thus, the only persons who could enlighten us about the, visit of Kulwant
Singh to PS City, Ropar are either the police personnel posted in the PS City Ropar
or Manjit Kaur and her son. Several police personnel have been examined but
they have denied that Advocate Kulwant Singh had visited the police station
that night. They have also denied about the detention of Smt. Manjit Kaur or
her son in the Police Station.
Manjit
Kaur and her son Amarjit Singh @ sonu, who are the only key witnesses in this
case, have also changed their versions and denied having been ever detained by
the police in the PS City, Ropar. Smt. Manjit Kaur is now maintaining that she
was never detained by the police and she has also made a statement before the
Special Magistrate, Patiala on 3.7.95 U/s 164 Cr.P.C. stating therein that she
was not detained by the police during 25.1.93 to 27.1.93. Her eldest son Inderjit
Singh @ Lucky has been appointed as a Special Police Officer by Ropar Police w.e.f.
21.8.94 without taking any application from him and he is working in PS Sadar Ropar
under Shri Avindervir Singh, SHO. Village Budha Bhora to which Smt. Manjit Kaur
belongs falls under the jurisdiction of PS Sadar Ropar. It appears that the
version of Manjit Kaur and her son is not reliable and Manjit Kaur seems to
have made the statement before the Magistrate under certain extraneous
pressure.
7. A
very significant fact that remains unexplained is the recovery of the car by
the police from the Bhakra Canal on 12.2.93. If Lucky was innocent and was not
involved in the crime, he could not have known where the car was. It is in the
evidence of family members of Kulwant Singh that Kulwant Singh and his family
had gone to PS City, Ropar on 25.1.93 in the said car allegedly recovered from Bhakra
Canal on 12.2.93. As per the records prepared by Avindervir Singh, SHO, he had
recovered this car at the instance of Harpreet Singh @ Lucky. Now question
arises as to how he could recover the car if Lucky was innocent and was not
involved in the crime. Thus, the recovery of the car by the police, false
implication of Harpreet Singh @ Lucky, subsequent payment of money to his
father under a false name showing him as an SPO and appointment of Inderjit
Singh @ Lucky, as an SPO during the investigation of this case possibly to keep
a control on him, his mother Manjit Kaur and his brother Amarjit Singh @ Sonu
and subsequent denial by Manjit Kaur and her son about their detention by the
police does point the finger suspicion at the police but these circumstances
are not clinching in nature.
8. The
recovery of the car of Advocate Kulwant Singh was made by SI Avindervir Singh
which obviously could have been done on the basis of certain information
available with him which shows his personal knowledge about the occurrence.
Otherwise
he could not have known that the car was thrown into the canal. This is a
circumstance against Avindervir Singh. The dead bodies of Kulwant Singh,
Advocate and his family members could not be recovered inspite of our best
efforts. The precise sequence of events after Advocate Kulwant Singh and his
family left their house on the night of 25.1.93 could also not be established due
to the noncooperation of Smt. Manjit Kaur and her son Amarjit Singh @ Sonu who
were the key witnesses in this case. Assuming that Advocate Kulwant Singh and
his family, were killed, there is no evidence on record regarding the modus.
9. We
have collected adequate evidence to suggest that the police version to the
effect that Kulwant and his family members were killed by Harpreet Singh @ Lucky,
is not correct. It is proved beyond reasonable doubt that Lucky has not killed Kulwant
Singh and his family members. The confession of Lucky has been falsely
recorded. The recovery of the car U/s 27 Evidence Act has been falsely shown.
10.
However, the investigation has not been able to bring forth any evidence to
reveal the persons who have committed the act of killing of Kulwant Singh and
his family members. Their dead bodies have not been found in spite of our best
efforts. There is no other evidence which may connect any of the suspect police
officers with the kidnapping/killing, howsoever strong the suspicion may
be." It is no doubt correct that the CBI investigation reveals
circumstances which do point a finger of suspicion at the police officers but
whether the circumstances are sufficient to prosecute them for the abduction
and murder of Kulwant Singh and his family is a matter for the consideration of
the Designated Court which is seized of the trial. We do not wish to go into
this question. The appellant before us and the prosecutor shall be at liberty
to argue before the trial court the the material collected by the CBI including
its report show that the police officers are prima facie responsible for the
abduction and murder of Kulwant Singh and his family and are liable for
prosecution for offences under the relevant provisions of the Indian Penal
Code.
The
abduction and murder of Kulwant Singh and his family was the most heinous crime
against humanity. It has taken a mysterious and an extremely shocking turn by
the finding of the CBI that Harpreet Singh @ Lucky has been falsely implicated
in the case. The CBI report indicates that under pressure from the police and
finding no other alternative to save his life he agreed to their proposal to
accept the murder of Kulwant Singh and his family members.
Mr. Navkiran
Singh has rightly contended that the least this Court can do at this stage is
to compensate the old parents of Kulwant Singh. J.S Verma, J. speaking for this
Court in Nilabati Behera vs.State of Orissa (1993) 2 SCC 746 held as under:
"It
follows that a claim in public law for compensation for contravention of human
rights and fundamental freedoms, the protection of which is guaranteed in the
Constitution, is an acknowledged remedy for enforcement and protection of such
rights, and such a claim based on strict liability made by resorting to
constitutional remedy provided for the enforcement of a fundamental right is
'distinct from, and in addition to, the remedy in private law for damages for
the tort' resulting from the contravention of the fundamental right The defence
of sovereign immunity being inapplicable, and alien to the concept of guarantee
of fundamental rights, there can be no question of such a defence being
available in the constitutional remedy. it is this principle which justifies
award of monetary compensation for contravention of fundamental rights
guaranteed by the Constitution, when that is the only practicable mode of
redress available for the contravention made by the State or its servants in
the purported exercise of their powers, and enforcement of the fundamental
right is claimed by resort to the remedy in public law under the Constitution
by recourse to Articles 32 and 226 of the Constitution. This is what was
indicated in Rudul Sah and is the basis of the subsequent decisions in which
compensation was awarded under Articles 32 and 226 of the Constitution, for
contravention of fundamental rights.
We
respectfully concur with the view that the court is not helpless and the wide
powers given to this Court by Article 32, which itself is a fundamental right,
imposes a constitutional obligation on this Court to forge such new tools,
which may be necessary for doing complete justice and enforcing the fundamental
rights guaranteed in the Constitution, which enable the award of monetary
compensation in appropriate cases, where that is the only mode of redress
available. The power available to this Court under Article 142 is also an
enabling provision in this behalf. The contrary view would not merely render
the court powerless and the constitutional guarantee a mirage, but may, in
certain situation, be an incentive to extinguish life, if for the extreme
contravention the court is powerless to grant any relief against the State,
except by punishment of the wrongdoer for the resulting offence, and recovery
of damages under private law, by the ordinary process. If the guarantee that
deprivation of life and personal liberty cannot be made except in accordance
with law, is to be real, the enforcement of the right in case of every
contravention must also be possible in the constitutional scheme, the mode of
redress being that which is appropriate in the facts of each case. This remedy
in public law has to be more readily available when invoked by the have-nots,
who are not possessed of the wherewithal for enforcement of their rights in
private law, even though its exercise is to be tempered by judicial restraint
to avoid circumvention of private law remedies, where more appropriate.
We may
also refer to Article 9(5) of the International Covenant on Civil and Political
Rights, 1966 which indicates that an enforceable right to compensation is not
alien to the concept of enforcement of a guaranteed right. Article 9(5) reads
as under:
"Anyone
who has been the victim of unlawful arrest or detention shall have an
enforceable right to compensation." We direct the Punjab Government
through Secretary to Government, Home Department to pay a sum of Rs.10,00,000/-
(ten lac) to the parents (father and mother) of Kulwant Singh, Advocate as
compensation. The payment shall be made within two months of the receipt of
this order.
Regarding
Harpreet Singh @ Lucky the CBI reached the following conclusion:
"Facts
emerging from the investigation lead us unequivocally and decisively to
conclude that Harpreet Singh @ Lucky is not responsible for the abduction or
murder of Kulwant Singh, Advocate and his family." The Police Officers
falsely implicated Harpreet Singh @ Lucky in the case. We direct that he be
released from jail forthwith. We further direct the Punjab Government through
Secretary to Government, Home Department to pay a sum of Rs. 2,00,000/- (two lac)
to Harpeet Singh @ Lucky as compensation for the sufferings caused to him
because of the false implication in the case in particular his remaining in
jail for a long period. The amount of compensation shall be paid within two
months of the receipt of this order. We further direct the Home Secretary,
State of Punjab to provide security if he considers
it necessary to Harpeet @ Lucky. We further direct that in the event of
conviction of the police officers, the amount of compensation paid to Harpeet @
Lucky shall be recovered from them personally.
We
transfer the trial from the Designated Court
at Ropar to the Designated
Court at Chandigarh. The CBI shall file the necessary challan
in accordance with the Code of Criminal Procedure before the trial court at Chandigarh. We direct the trial court to
conclude the trial expeditiously and preferably within six months of its
commencement. We direct the State of Punjab through the Home Secretary or any other appropriate authority to take
up the question of grant of sanction under Section 197, Criminal Procedure Code
for the prosecution of the police officers immediately and take a decision in
this respect within one month of the receipt of this order.
Keeping
in view the facts and circumstances highlighted by the CBI in its report it
would be in the interest of justice to suspend the police officers during the
course of the trial. We therefore, direct the Home Secretary, State of Punjab to take of appropriate action in
this respect. We accept the recommendation/the CBI regarding Shri Sanjiv Gupta,
DIG Punjab Police and direct the Government of Punjab through Secretary to
Government, Punjab to take suitable action against Shri
Gupta in the light of the findings of the CBI.
The
appeal is disposed of.
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