Punjab-Haryana High Court
Swinder Kaur And Others vs State Of Punjab And Others on 27 January, 2010
Author: Sabina
Bench: Sabina
Crl.W.P.No.137 of 1996 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Crl.W.P No. 137 of 1996
Date of Decision: January 27 ,2010
Swinder Kaur and others ...........Petitioners
Versus
State of Punjab and others ..........Respondents
Coram: Hon'ble Mrs. Justice Sabina
Present: Mr.B.S. Jaswal, Advocate for the petitioners
Mr.Amandeep Singh Rai,AAG Punjab
Mr.P.S.Brar,Advocate for respondent No.4
Sabina, J.
Petitioners have filed this petition under Article 226 of the Constitution of India for the issuance of a writ in the nature of Habeas Corpus for the release of Amar Singh detenu from the illegal custody of the respondents.
This petition was, initially,filed by Major Singh, unfortunate father for release of his son Amar Singh. During the Crl.W.P.No.137 of 1996 2 pendency of the petition, Major Singh died and Swinder Kaur, mother of detenu and others were brought on record as the legal representatives of deceased-Major Singh vide order dated 4.12.2008.
The case of the petitioner-Major Singh was that on 8.12.1992, Amar Singh had gone to Amritsar for shopping but did not return back home. On inquiry, he found that his son had been taken away by respondent No.4 and other 4/5 police officials from the bus while he was travelling from Amritsar to his village. When Major Singh met respondent No.4, he was also detained by respondent No.4. Petitioner- Major Singh and his son Amar Singh were interrogated for a week and were tortured by respondent No.4. Thereafter, Major Singh was released after a week. However, Amar Singh was not released by respondent No.4 and Major Sigh later came to know that his son had been falsely involved by Faridkot Police in FIR No.91 dated 14.12.1992 under Section 307 IPC and 25 of the Arms Act.
Notice of motion was issued in this case. State, in its reply, took up the plea that Amar Singh was involved in the above-stated FIR. Amar Singh was arrested on 14.12.1992 and was produced before the Duty Magistrate, Faridkot on the same day and was remanded to police custody till 16.12.1992. During interrogation, Amar Singh suffered a disclosure statement that he had kept concealed one mouser and 10 cartridges wrapped in a polythene paper in his fields. Thereafter, he suffered a disclosure statement that he had kept concealed the said articles at canal abhor branch. While the police party was going to effect recovery, they were attacked by unidentified persons. During cross-firing, Amar Singh escaped under the cover of darkness. Vide order dated Crl.W.P.No.137 of 1996 3 1.10.1996, this Court directed the Sessions Judge Faridkot to conduct an inquiry and submit a report regarding escape or disappearance of Amar Singh. The learned Sessions Judge, after conducting the inquiry, has submitted his report which reads as under:-
"1. Major Singh petitioner filed a writ petition in the Punjab and Haryana High Court alleging that his son Amar Singh aged about 28 years used to live with him at village Talwandi Dasondha Singh, District Amritsar and in the evening of 8.12.1992 he had gone to Amritsar for some shopping and he did not return to the house. On enquiry, he came to know that his son Amar Singh was pulled down from a bus by respondent No.4, who was accompanied by 4/5 other police officials when Amar Singh was coming back from Amritsar to his village., He immediately went to Police Station Kathu Nangal, but the police showed their ignorance. On 10.12.1992 he was told by a Constable of Police Station Kathu Nangal that Amar Singh had been taken away by respondent No.4 Nek Singh, SHO Police Station Jaitu, as such he went to Police Station Jaitu and met respondent No.4 but he did not disclose the whereabouts of Amar Singh, to him, rather he was locked up in the police lock up. Lateron, Amar Singh was also brought and locked with him. He and his son were interrogated for about a week and were tortured by respondent No.4. Respondent No.4 was pressing him and his son to admit that they had AK-47 rifles with them or they should pay Rs.50,000/- each. In the meantime, Gopal Singh, Gurdial Singh and other respectables met respondent No.3 and 4 and as a result he was Crl.W.P.No.137 of 1996 4 released after detention of about one week. Respondent No. 4 told that Amar Singh will be released after interrogation. A threat was given to him by respondent No.4 that his son may be killed in a false encounter, if he made any application or complaint against the police. He has come to know that his son is in illegal custody of the police and has been falsely involved in a case FIR No.91 dated 14.12.1992 under Section 307 IPC and 25/54/59 Arms Act. Sanction to prosecute his son was obtained from respondent No.2. In the sanction there is no mention of the whereabouts of his son. Sanction was given on the report made by respondent No.3. On coming to know that his son is being prosecuted he tried his level best to know whereabouts of his son, but he could not find his son. As such he has reason to believe either his son has been eliminated or is still languishing in some torture centre and as such he be got released.
2. Notice of the writ petition was given to the respondents. Replies were filed and after considering the same the Hon'ble Justice S.C.Malte, of the Punjab & Haryana High Court, vide his order dated 1.10.1996 observed that two different pleas have been taken by the petitioner and the respondents. Proper material has not been placed before the Hon'ble High Court and as such an enquiry was required and directed me to hold the enquiry and submit a report within six months.
3. After the receipt of the file, I have recorded the evidence produced by both the parties.
4. The petitioner has examined Surjit Singh as PW1, Gurdial Crl.W.P.No.137 of 1996 5 Singh as PW2, Dr.Balker Singh as PW3 Jaswinder Singh DRK as PW4, Major Singh MHC as PW5, Balwinder Singh HC as PW6, Gurmohan Singh Ahlmand as PW8, Gurdarshan Singh Inspector as PW9 and has given his own statement as PW7. The respondents in support of their contention have examined Birinder Pal Reader as RW1, Kuldip Singh Reader as RW2, Balwinder Singh as RW3, Gurjit Singh, H.C. as RW4, Bakhtawar Singh ASI as RW5.
5.The contention of the respondents in this case is that FIR No.91 dated 14.12.1992, under Section 307 IPC and 25/54/59 Arms Act, was registered against Amar Singh, after his arrest on 14.12.1992. Amar Singh was produced before the Duty Mgistrate at Faridkot and he was remanded to Police Custody till 16.12.1992. During investigation Amar Singh made a disclosure statement to the effect that he kept concealed one Mouser and 10 cartridges wrapped in a polythene paper in his field at village Talwandi Dasondha Singh. However, later on he made another disclosure statement in the presence of Balwinder Singh Ex-Sarpanch Kothe Mahla Singh to the effect that he had kept concealed one Mouser and ten cartridges wrapped in a plastic paper in the area of village Aspal at Canal Abohar Branch and in pursuance of the disclosure statement Amar Singh led the police party headed by respondent No.4 along with SI Gurdarshan Singh, SHO Police Sation Sadar Malout, to the area of village Aspal falling in police station Sadar Malout, on the intervening night between 14th and 15th December, and when the party was going on the Bank of Abohar Canal the Crl.W.P.No.137 of 1996 6 party was attacked by unidentified persons and during cross-firing accused Amar Singh escaped under the cover of darkness. Lateron, the police recovered the dead body of one unknown person resulting in FIR No.130 dated 15.12.1992, under Section 324/325/307/34 IPC and 25 Arms Act and 4-5 Explosive Act, which was registered in Police Station Sadar Malout. In FIR No. 91 dated 14.12.1992 Amar Singh was declared as proclaimed offender after the proceedings under Section 82 Cr.P.C. which were taken against him and that file has already been consigned. Amar Singh is still absconding and is wanted by the police.
6. In this case, two versions have been set up by the parties. According to the petitioner his son was travelling in a bus from Amritsar to his village and he was picked up by the police from the bus and brought to Jaitu. When he came to enquire about his son he was also detained and both of them were tortured by the Police. In support of the said contention PW1 Surjit Singh in his statement has stated that about one or two months more than four years back he was returning from Amritsar to his village. When he reached near graveyard he saw that two and three buses had been stopped there. It was about 4/4.30 P.M. and he got down from his cycle and when he was passing on the road, he saw that Amar Singh had been made to got down from the bus by the police officials. Amar Singh after giving pushes and fist blows was made to sit in a white colour Maruti Van and was taken towards Amritsar. He went to vilalge and informed Balbir Singh son of Major Singh complainant, about this. This shows that Crl.W.P.No.137 of 1996 7 according to Surjit Singh he saw Amar Singh being taken away by the police at about 4/4.30 P.M. towards Amritsar in a white Maruti Car and then he informed Balbir Singh son of the complainant. Said Balbir Singh has not been examined as a witness by the complainant. Only complainant has appeared as PW7 and in his statement he has stated that about four years and three months back his son Amar Singh had gone to Amritsar to purchase household articles and he did not return to the house and his son Balbir Singh told him that Amar Singh had been taken away by the police and he should get ready. He was told that Amar Singh was picked up by the police from near the graveyard near Verka from a bus and then he alongwith others went to police station Kathu Nangal. Balbir Singh was also with him and the police told that his son was not there. On the next day they searched for Amar Singh but could not search for him. On the third day, a constable told him that his son had been taken away by the police of Jaitu Police Station. Then he sent Balbir Singh to the village and he came to Jaitu and he enquired from Nek Singh about his son, but he told that he was not with the police and he should get out. He insisted that his son is with the police since he had been picked up. Then they offered to show him his son. He was taken inside and locked in a room. At about 9.00 P.M. Amar Singh was brought there. They remained there for about one or half an hour and then the police came there and asked both of them to put off their clothes. When Amar Singh was brought he was caught hold of from both the shoulders and he was dragged Crl.W.P.No.137 of 1996 8 as he could not walk about. Then the police started giving beatings to both of them and Nek Singh asked them either to give assault rifles or to pay Rs.50,000/- each. As per statement of PW1, Amar Singh was taken away towards Amritsar. According to Major Singh when Balbir Singh told him, he and his son went to Police Station Kathu Nangal. If Amar Singh has been taken away to Amritsar, it is not understandable as to why the complainant went to make enquiry from police station Kathu Nangal. According to the complainant one Constable told him that his son had been taken away by the police of police station Jaitu. Said constable has not been examined as a witness. According to the complainant, Amar Singh was made to get down from the bus and then he was taken away by the police. It is not understandable as to how the constable in Police Station Kathu Nangal came to know that Amar Singh had been picked up from the bus and taken away by the Jaitu police. According to the complainant when he went to enquire about his son Amar Singh at Police Station Jaitu he was detained and when his son was brought he could not even walk. He and his son were illtreated for three days. Beatings were given to them. According to the complainant Gurdial Singh and Gopal Singh both of whom are Ex-Sarpanchs got him released and at that time they were told that Amar Singh was still to join investigation and they should come after 3-4 days and again they went after 3-4 days. SHO promised to release him after 4-5 days. Then again he, Gurdial Singh Bhajan Singh and Gurdip Singh went to the police station, but Crl.W.P.No.137 of 1996 9 they were told that Amar Singh was not to be released. Gurdial Singh has been examined as PW2 and he has stated that he knows Amar Singh and Major Singh. Balbir Singh told him that Amar Singh was taken away to the Police Station Jeeto. He alongwith Balbir Singh, Gopal Singh and two other persons, who are relatives of Major Singh and whose name he does not know went to police station Jeeto. There Nek Singh SHO met them. They told him that their persons were there in the police station and they should be handed over to them. SHO replied that he did not know anything about their persons. Then they came to Faridkot and met the DSP. Again said they met SSP and made a request that their persons were not available and they were at Police Station Jeeto, but they had not given the same to them. They were told that they should go back to the police station and in case their persons are in the police station they will be released. Therefore, they again made a request and Nek Singh replied that Major Singh would be handed over to them and Amar Singh will be released after interrogation for 2-3 days. Statement of PW2 shows that he does not know even the name of the police station. Instead of Police Station Jaitu, he has been calling it as Jeeto.
7. The complainant himself has examined Dr.Balkar Singh as PW3, who conducted the post mortem examination on the dead body of unknown adult sikh on 15.12.1992.
8. It was argued before me that the person whose post mortem examination was done on 15.12.1992 was none else than Amar Singh. The said contention of the counsel for the petitioner is Crl.W.P.No.137 of 1996 10 belied by the allegations made in the petition itself. According to the allegations in the petition Amar Singh was taken away by the police of Police Station Jaitu and as such he went there and there he was detained by the police where Amar Singh was also brought. He and his son were interrogated for a week by respondent No.4 and they were also tortured by him. This shows that according to the allegations made in the petition, the petitioner and his son were with the police upto 17.12.1992. The post mortem examination of the dead body of an unknown person was done on 15.12.1992 and that person was died on the night intervening 14/15.12.1992 as per evidence on the file. If according to the petitioner, he and Amar Singh were there in the police station Jaitu upto 17.12.1992, then the peron whose post mortem examination was done on 15.12.1992 cannot be the son of the petitioner. According to the petition when his son was brought he had been illtreated and he could not even walk and after that he and his son were beaten continuously for about a week. As per the report of the post mortem examination of the deceased unknown person Ex.PA and the statement of PW3 Dr.Balkar Singh the dead body was having five wounds and all the said injuries were caused by fire arm weapons. This shows that the dead body was not having any marks of illtreatment. Had Amar Singh then ill-treated as stated Major Singh petitioner, then at the time of post mortem examination the injury marks would have been there on the person of Amar Singh
9. The petitioner in the writ petition itself in para No. 7 has Crl.W.P.No.137 of 1996 11 alleged that he came to know that detenu wad still in the illegal custody of Faridkot police, who has been falsely involved in case FIR No.91. The writ petition was filed on 29.1.1996. This shows that even at that time the petitioner alleged that his son was still alive and was in illegal custody. In para No.10 of the writ petition it is mentioned that he had reason to believe that either his son was eliminated or is still languishing in torture centre of the police of Faridkot District. This shows that even at the time of the filing of the petition the petitioner was not sure that his son had been eliminated, rather according to him he was still in illegal detention. Had the son of the petitioner been tortured along with him by the police as alleged by him, he would not have kept silent for such a long time. It appears that some time before the filing of the writ petition the petitioner came to know that his son was involved in some case in police Station Jaitu. Otherwise he would not have kept silent for more than 3 years. Therefore, the story that the deceased was picked up by the police from a bus while travelling from Amritsar to his village does not appear to be correct
10.As per allegations made in the writ petition on the evening of 8.12.1992 Amar Singh had gone to Amritsar for some shopping and did not return to the house . According to the statement of PW1, Amar Singh was returning after shopping from Amrtisar at about 4/4.30 PM when he was picked up by the police. If the deceased had gone to Amritsar for making some purchases by bus and was returning at 4.30 P.M. then he Crl.W.P.No.137 of 1996 12 must have left the village much earlier. Therefore, the statement of PW1 is improbable one and is not sufficient to establish that the deceased was picked up from the bus by respondent No.14 and others and then taken away to police station Jaitu.
11.The contention of the respondents is that on 14.12.1992 the deceased was arrested after an encounter with the police and a case was registered against him under Section 307 IPC and 25 Arms Act. During the investigation of that case he was interrogated and he made a disclosure statement and when he was being taken for the recovery of the arms, the police party was attacked by some persons and Amar Singh escaped in the encounter and one other unknown person was killed whose post mortem examination was done by PW3 Dr. Balkar Singh, RW5 ASI Bakhtawar Singh has stated that on 14.12.1992 he was posted in police station Jaitu. On 14.12.1992 at about 4 AM Amar Singh was apprehended at chowk Khachar in the area of village Khachar. Said Amar Singh was son of Major Singh resident of village Talwandi Dasondha Singh, Distt. Amritsar. He was given a signal with torch light to stop, but he fired at the police party. The police party fired back and then he was apprehended. From his possession one country made 303 Bore pistol was recovered and on unloading the same one empty cartridge was recovered and three live cartridge wee recovered and FIR No.91 was registered against him regarding the same. The original ruqa was sent by Nek Singh and the same bears his Crl.W.P.No.137 of 1996 13 signatures. FIR No.91 was registered by Balwant Singh MHC. After that remand of the accused was taken from the Court at Faridkot. The accused was interrogated on 14.12.1992 and in the presence of Balwinder Singh Ex-Sarpanch he made a disclosure statement that he had kept concealed one mouse and 10 cartridges after wrapping in a glazed paper near Abohar Canal under a Kikkar tree in the area of village Aspaal. His disclosure statement was recorded which was thumb marked by the accused and copy of the same is Ex.R2. On 14.12.1992 he was taken at night time for the recovery of the articles. Amar Singh was also with the police party. SHO Gurdashan Singh Wanjara Ram HC and some other police officials were there. When the party was at Abohar Canal then there was firing at the police party. The police party fired back. After firing Balwinder Singh Constable told that the accused Amar Singh had run away with the handcuffs after broking his belt. On the search of the place, a dead body of unidentified person was found which was having bullet marks. One single barrel 12 Bore gun, the barrel of which was cut short was found lying near the dead body. Six live cartridges of 12 Bore and five empty cartridges and one hand grenade were recovered. The case was registered in that respect by Gurdarshan Singh Inspector. Post mortem examination of the dead body was got done by Police Station Sadar Malout, Amar Singh was aged 22- 23 years. Balwinder Singh RW3 who is Ex-Sarpanch stated that about 4 ¼ years back at about 4.30 P.M. he had gone to Crl.W.P.No.137 of 1996 14 police Station Jaitu. Amar Singh, who was resident of Amritsar District was interrogated and on interrogation he made a disclosure statement that he had kept concealed one mouser and cartridges under a kikkar tree in the area of village Aspaal and he could get the same recovered. Disclosure statement was recorded. The petitioner himself has examined Gurdarshan Singh as PW9 and he also stated that an encounter took place in which Amar Singh escaped and an unidentified person was killed. RW1 Birinder Pal Reader of Shri B.K.Mehta, Civil Judge (Sr.Division), Faridkot has proved the fact that Amar Singh was declared as a proclaimed offender on 3.11.1993 in case FIR No.91 dated 14.12.1992 under Section 307 IPC and 25 of the Arms Act of P.S.Jaitu. The list of property of Amar Singh was called and attachment warrant was also issued, but the Patwari reported that Amar Singh was not owning any property as such the proceedings under Section 299 Cr.P.C were taken against Amar Singh and after recording the evidence the file was consigned on 20.12.1995. This shows that as per the proceedings of the Court Amar Singh was declared a proclaimed offender in case FIR No.91dated 14.12.1992, under Section 307 IPC in which he was arrested and after completion of the proceedings under Section 299 Cr.P.C the file was consigned on 20.12.1995. RW2 Kuldip Singh Reader has proved the report Ex.R1 of Nek Singh, SHO Police Station Jaitu, which was recived by Sh.K.S.Bhullar, the then Addl. Chief Judicial Magistrate, Farikot. In the said report Crl.W.P.No.137 of 1996 15 Ex.R1 detailed facts are mentioned that Amar Singh was arrested on 14.12.1992 and then his remand was taken from the Court and on interrogation he made disclosure statement and when he was being taken for the recovery of the arms the police party was attacked and Amar Singh escaped. The said report was filed by the concerned Addl.Chief Judicial Magistrate, Faridkot. As such immediately, after the occurrence Nek Singh sent the report regarding the incident in which Amar Singh allegedly escaped. RW4 Gurjit Singh HC has stated that as per Daily Diary Register for the month of December, 1992 vide report No.21 dated 14.12.1992 the police party headed by Nek Singh SI had left the police station Jaitu for the recovery of mouser and cartridges regarding which disclousre statement was made by the accused Amar Singh in FIR No. 91 of 1992 under Section 307 IPC. Copy of the report is Ex.R3. The police party returned at 7.30 AM on 15.12.1992 and after return a report was recorded in the DDR copy of which is Ex.R4. Copy of this report was sent to the Illaqa Magistrate also for information. This shows that regarding the incident a report was recorded in the police station after return.
12. In this case it is the contention of the respondents that one unidentified sikh youth was killed in the encounter and regarding that FIR No. 130 was even registered. That FIR was got registered by Gurdarshan Singh PW9. Gurdarshan Singh in his statement has stated that Wanjara Ram H.C. handed over to him the belongings of the deceased and the finger prints of the Crl.W.P.No.137 of 1996 16 deceased after post mortem examination and he deposited the said articles with the said MHC on 16.12.1992. He did not send those finger tips to Phillaur for examination since it was the job of MHC and he does not remember whether he noted down some special identification marks when the dead body was taken into possession. He did not take any finger impression of the deceased on any paper before sending the dead body for post mortem examination. Rules prescribe that if a dead body is unidentified the officer making investigation shall record a careful description of it, giving all marks, peculiarities, deformities and distinctive features, shall take the finger impressions and, in addition to taking all other reasonable steps to secure identification shall, if possible have it photographed and in cases where such action appears desirable, a description published in the Criminal Intelligence Gazettee. This shows that the Officer making investigation is requird to give a careful description of the dead body and is also required to take finger impressions. But in the present case it does not appear to have been done intentionally or unintentionally. The doctor handed over the fingers tips to Wanjara Ram and Wanjara Ram has stated that he produced the same before Gurdarshan Singh Inspector. Gurdarshan Singh has stated that he deposited the same with the MHC. Major Singh MHC of Police Station Sadar Malout has been examined as PW5 and he stated that as per register No. 19 relating to 1992, a 12 Bore gun, the barrel of which had been cut short, six Crl.W.P.No.137 of 1996 17 live cartridges, one grenade were deposited in the police station as per entry No.888, dated 15.12.1992. There is no other entry regarding the deposit of any other property with the MHC. No belongings of the deceased or finger tips were deposited. He cannot say as to where the police file of this case is. As per entry in the FIR Register, the challan was presented in the Court on 26.10.1994. There is no entry regarding the result of the challan. He cannot say as to who made the entry. There is no signatures of any officer. As per the entry the challan was presented on 2.9.1993. Statement of Major Singh MHC shows that finger tips were not deposited in the police station. As such it is not understandable as to where the said finger tips are. The police file has not been produced before me. As per the entry the challan was presented. Shri Gurmohan Singh Ahlmad of the Court of Judicial Magistrate Ist Class, Muktsar has been examined as PW8 and he has stated that no challan was present in case FIR No.130 of 1992 dated 15.12.1992 on 26.10.1992, 2.9.1994 or 2.9.1993. The said challan was not presented in any of the Courts at Muksar as per entries in the register of relevant time. A special report was received in the Court and the same is still lying in the record. This shows that no challan has been presented in the Court and inspite of that an entry has been made that the challan was presented. As such there is nothing on the record to show as to what happened of the FIR No.130 which was registered regarding the escape of Amar Singh. The challan has not been presented in Court. The finger Crl.W.P.No.137 of 1996 18 tips of the deceased are not traceable. The police file is not traceable. As such there are some doubtful points regarding the encounter. It is also not clear as to why at night time Amar Singh was being taken for the alleged recovery, when he made a disclosure statement at about 4/4.30 PM. Some doubts are there regarding the story put up by the respondents and the same have not been cleared inspite of the fact that all the relevant record was called for. As already discussed, story put up by the petitioner is not correct. There is evidence that Amar Singh has been declared as proclaimed offender. However, there is some doubt as to whether it was Amar Singh who actually escaped or he was killed in the alleged encounter. Hence, the report is submitted."
Thus, the learned Sessions Judge, after holding an inquiry,has opined that there were doubts regarding the story put forth by the petitioner as well as the respondents. However, the fact remains that Amar Singh, who was, admittedly, in police custody, has not been traced till date. This petition was,initially, filed by the father of Amar Singh and later on, during the pendency of this petition on account of his death, the mother of Amar Singh and other legal heirs were brought on record. It is an unfortunate incident where the State has failed to explain about the whereabouts of a person who was, allegedly, in their custody. Since the District and Sessions Judge has opined that the story put forth by the petitioners as well as the respondents qua disappearance of Amar Singh were doubtful, it is not a fit case where the criminal case should be ordered to be registered against the respondents. However, since Amar Singh has Crl.W.P.No.137 of 1996 19 not been recovered till date, it is a fit case, where petitioners are liable to be compensated.
Accordingly, this petition is disposed of with a direction to the State of Punjab through Secretary, Home Department, Punjab to pay immediately compensation of Rupees five lakhs to the petitioners.
(Sabina) Judge January 27 , 2010 arya