Kaur Vs. Union of India & Ors  Insc 299
(3 May 2005)
Pasayat & S.H. Kapadia Arijit Pasayat, J.
writ petition filed under Article 32 of the Constitution of India, 1950 (in
short the 'Constitution') presents some unusual features. In mythology Sati Savitri's
prayer ensured that her husband Satyaban escaped jaws of death. Petitioner Smt.
Angrej Kaur is the wife of one B.S.F. Constable named Surjit Singh. Though he
has been declared to have died in the Indo-Pak war in 1971, the petitioner on
the basis of certain materials believes that he is alive and is languishing in Kot
Lakhpat Rai Jail, Pakistan.
factual scenario in the present petition as projected by the petitioner runs in
somewhat similar lines and even at first flush may appear fictional. It is in
essence prayer for writ in the nature of habeas corpus. Though technically it
may appear to be unacceptable as the concerned person is stated to be in
custody in a Pakistan jail, yet the petitioner's human
emotions refuse to accept this legal landline.
the factual background as projected by the petitioner needs to be noted.
Singh was Constable in 57 Battalion of B.S.F. and he was posted in Chhamb
Sector on 3rd/4th
Initially he was reported to be missing. A communication dated 26.7.1972 was
received by the petitioner from the concerned authorities granting her family
pension of Rs.130/- as Surjit Singh was reported to be missing. On 26.9.1974
the Commandant of the concerned authority issued certificate to the effect that
for all official purposes he had died on 4.12.1971 while on duty. A letter to
this effect was also received by the petitioner. In spite of these informations,
the petitioner believes that her husband is alive and she did not believe that
he could have died. Her unfailing faith on the almighty made her believe that
the information was wrong. She awaited for information about Surjit Singh being
alive, as her prayers were coming from her heart. Her son Amrik Singh was
hardly one year of age at the time his father was reported dead. Now he is in
his thirties. Though more than three decades passed by, she refused to believe
that her husband has died. She read in the newspaper (Punjabi Daily) 'Ajit' on
3.9.2004 that one Khushi Mohammad had returned from Pakistan Jail after 14
years. The news report indicated that though Khushi Mohammad and few others
were released there were as many as eighty five Indians Still lying in jails of
Pakistan in pitiable circumstances and the
name of one Surjit Singh was mentioned along with others. The petitioner
believes that said Surjit Singh was none other than her husband. On 4.9.2004 Amrik
Singh went to meet aforesaid Khushi Mohammad at Nishant Colony, Malerkotla City, Punjab and showed him the photograph of
his father Surjit Singh.
Mohammad immediately identified the person in the photograph and confirmed
having seen him in 'Kot Lakhpat Rai Jail' in Pakistan. This news was of a great solace and joy to the petitioner
and her family members. On 16.9.2004 Amrik Singh met other persons who had been
released along with Khushi Mohammad. They also identified the photograph of Surjit
Singh and confirmed having seen in Kot Lakhpat Rai Jail in Pakistan. On 24.9.1994 the petitioner sent
representation to various authorities, functionaries and dignitaries requesting
that efforts be made to bring back Surjit Singh from Pakistan Jail. Making a
grievance that she had not received any positive response to her petition, the
writ petition was filed. On 7.2.2005 direction was given to the opposite
parties to look into the grievance of the petitioner within a period of four
weeks. An affidavit has been filed on behalf of the Union of India, Ministry of
Home Affairs and the Directorate of B.S.F. Various steps taken by the authorities
have been indicated. From the status report, we find that steps have been taken
to find out actual position. It also appears that initial response of the Pakistan authorities was that they have
checked various jails but Constable Surjit Singh could not be traced.
appears that the matter has been discussed at the B.S.F. and Pakistan Rangers
meetings. In the India-Pakistan Quarterly Meeting (DIG
level), the matter was discussed on 29.12.2004. In February, 2005, the Pakistan authorities intimated that steps
were being taken to trace Constable Surjit Singh and he will be repatriated if
found in Pakistan.
there was a negative response from the Pakistan authorities, later matter appears to have been taken up at Bio-Annual
meeting and the B.S.F. authorities have requested their counterparts in B.S.F.
to take up the matter expeditiously. We are satisfied that the B.S.F.
authorities have taken all possible steps to find out the petitioner's husband.
Let the Ministry of External Affairs which was requested by B.S.F. authorities
to look into the matter also intervene in the matter. If a soldier, while
fighting for the country's security, is captured and taken to other country's
prison contrary to the official belief that he was dead, it would be in the
interest of not only petitioner and her family members but also for the armed
forces of this country to see that he is brought back to our country. It is not
to be understood that we are issuing a writ of habeas corpus to any authority
outside India. Our directions essentially relate
to Indian officials.
cannot be lost sight of that law cannot ever be a combination of meaningless
and purposeless combination of words. The judicial system reaches its pinnacle
when it serves the ultimate object of all laws; i.e. delivering justice to the
recipient who deserves it, not shackled by pitfalls and landmines of
technicalities. Within the four corners of legal framework, the reliefs can be moulded
to achieve the ultimate objective, that is to deliver justice.
therefore, dispose of this writ petition with the direction that the
authorities shall continue the efforts to find out the actual position and
expeditiously intimate the petitioner, the results of the efforts/inquiries
made by them. Though we are disposing of the writ petition, let status report
indicating the latest development in the matter be filed within three months,
which shall be placed before us.
writ petition is accordingly disposed of.