Punjab-Haryana High Court
Gursewak Singh & Others vs State Of Punjab & Others on 18 April, 2013
Author: Amol Rattan Singh
Bench: Amol Rattan Singh
Crl. Writ Petition No.829 of 2013 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl. Writ Petition No.829 of 2013 (O&M)
Date of Decision: 18.04.2013
Gursewak Singh & others ...... Petitioners
Versus
State of Punjab & others ...... Respondents
****
CORAM : HON'BLE MR. JUSTICE AMOL RATTAN SINGH
Present : Mr. Gurvinder Singh Sidhu, Advocate
for the petitioners.
Mr. Gazi Mohd. Umair, DAG, Punjab
for the respondents.
****
Amol Rattan Singh, J (Oral)
This petition was filed, seeking a writ of habeas corpus for releasing 21 persons, mentioned in the prayer clause of the petition from the alleged illegal custody of respondents No.3 to 8, i.e. the functionaries of the State, who had been arrested invoking provisions of Sections 107/151 Cr.P.C. on 11.04.2013.
On the 12th April, 2013, the Bench then seized of the matter had directed nomination of a Warrant Officer, who would determine as to whether the persons mentioned were actually in illegal custody or otherwise. As per the Warrant Officer's report dated 15.04.2013, he had reached the Police Station Talwandi Sabo, Bathinda, on 12.04.2013 itself and had disclosed his identity to the Moharrer Head Constable present there, along with purpose of his visit. He was handed over the Roznamcha (daily diary) and, as such, proceeded upon inquiry into the whereabouts of the 21 alleged detenues. Crl. Writ Petition No.829 of 2013 (O&M) 2 The said detenues were found to be in judicial custody, upon remand thereto by the Naib Tehsildar-cum-Executive Magistrate, after their arrest, invoking Sections 107/151 Cr.P.C. The alleged detention was not found to be illegal by the Warrant Officer.
On 15.04.2013, learned counsel for the petitioner had submitted that the persons so detained were not being released, despite the fact that they had submitted sureties for securing of their release, as required under Section 107 Cr.P.C. The personal bonds asked from them were stated to be of too high an amount (for a sum of Rs.20,000/- each).
The SDM, Talwandi Sabo, was present in Court on 15.04.2013, and stated that only 7 persons detained had applied for release and their sureties too, could not be verified despite his best efforts. Thereupon, counsel for the petitioners had submitted that he would place on record all documents submitted in support of surety of each person, as had been submitted by them to secure their release. The District Magistrate, Bathinda, was also directed to file his personal affidavit on the issue and to be present in Court.
Pursuant to that order, Shri Kamal Kishor Yadav, Deputy Commissioner-cum District Magistrate, Bathinda, is present in Court and has submitted his affidavit detailing the circumstances under which the 21 persons named in the petition had been arrested, two days before Baisakhi, on apprehension of breach of peace, on account of some dispute with regard to grant of space for the common kitchen/langer. As per the affidavit, the detenues were booked under Sections 107/151 Cr.P.C. on 11.04.2013 and were produced before the Executive Magistrate, Talwandi Sabo, after notices under Section 111 Cr.P.C. were served upon them, which they refused to sign. Again, as per the affidavit, none of them had Crl. Writ Petition No.829 of 2013 (O&M) 3 furnished personal bonds or sureties at the time of their arrest and hence they were remanded to judicial custody on 11.04.2013 itself. Thereafter, on 13.04.2013, 7 out of 21 detenues furnished their surety bonds before the Executive Magistrate, along with some unattested copies of documents supporting such surety bonds, which were required to be verified. One of such documents was the purported registration copy of a car bearing No.DL1CF-2632 which, as per the affidavit, is a forged and fabricated document.
The affidavit further states that on 17.04.2013, i.e. yesterday surety bonds had been submitted by all the detenues and they had been ordered to be released.
As per the statement of the Deputy Commissioner-cum-District Magistrate, in Court, they have since been released.
With regard to the occurrence, learned counsel for the petitioners, on 15.04.2013, had submitted that the entire procedure with regard to the arrest and detention of the named persons was completely against law and their non-release was actually politically motivated and, in view of the fact that no procedure was being followed, it was still illegal detention. In this regard, it is pertinent to mention here that Section 107 Cr.P.C. being a provision with regard to apprehension of breach of peace, gives jurisdiction to the Executive Magistrate to obtain bonds and sureties from persons whom he apprehends would cause a breach of peace. Proviso to Section 113 further empowers him to, in case deemed necessary, to issue a warrant for arrest of such person. Similar powers have been granted to a police officer under Section 151, to arrest a person, even without a warrant, for upto 24 hours, in apprehension of commission of a cognizable offence. Hence, the action taken in this case, was purportedly taken against the 21 Crl. Writ Petition No.829 of 2013 (O&M) 4 persons named in the petition. One of the persons mentioned, i.e. Baljit Singh Dadu, has as many as 14 FIRs registered against him under various sections of the IPC and the Arms Act, since 1999 till date, as per the affidavit filed by the District Magistrate. Since he was allegedly leading the other 20 persons detained and it was apprehended that they would commit a breach of peace, either immediately before, or on, Baisakhi day, they are stated to be arrested as detailed above.
Though the affidavit states that they were arrested while staging a 'Dharna', learned counsel for the petitioners has produced photographs showing them coming out of a bus, with police personnel present. The District Magistrate states, in Court, that the said bus was actually present inside the premises of SGPC, i.e. the place where the detenues were to perform a "Parkash" of Sri Guru Granth Sahib, allegedly without the permission of the SGPC. The land where such "Parkash" was to be performed, is admitted by learned counsel for the petitioners, to be that of the SGPC (Shiromani Gurudwara Prabandhak Committee).
With regard to the other issue on which the Executive Magistrate was directed to swear his affidavit, vide order dated 16.04.2013, as to the number of persons detained in District Bathinda under Section 107 Cr.P.C. while they were on 'Dharna', and for how long such detenues were kept in custody before release, the affidavit states that 1276 persons were booked under Sections 107/151 Cr.P.C., in 27 cases, being protesters staging 'Dharna', and were later released on the basis of police reports as well as upon the satisfaction of the Executive Magistrate. The details of such persons has been annexed along with the affidavit. These details reveal that people have been kept in custody in such like situations for even up to two weeks, though, mostly, they were allowed to be released within 4 to 5 days. Crl. Writ Petition No.829 of 2013 (O&M) 5
Learned counsel for the petitioner has contended that while detaining people by invoking Sections 107/151 Cr.P.C. the mandatory procedures are more often not followed and, in this respect, he has also referred to The Rules and Orders of the Punjab and Haryana High Court. The relevant provision is in Volume III, Chapter 3, with regard to this issue, the introduction of which reads as follows:-
1. Introduction:- The provisions of Chapter VIII of the Code of Criminal Procedure, defining the circumstances under which persons may be called upon to furnish security to keep the peace (otherwise than on conviction) or for good behaviour, and laying down the procedure to be adopted in the trial of such cases, do not appear to be generally understood or observed."
Thereafter, the procedure that should be adopted, has been defined.
Learned counsel for the petitioner contends further, that such procedures should be strictly and meticulously followed, while invoking Sections 107 and 151 Cr.P.C., which can otherwise be misused.
As far as this case is concerned, in view of the fact that all 21 persons in the petition have already been released and were initially detained only after necessary orders in that regard had been passed by the Executive Magistrate, this petition is rendered infructuous and is disposed of as such.
With regard to the larger issue sought to be raised, to the effect that procedure is generally not followed while invoking Sections 107 and 151 Cr.P.C., this Court would obviously expect statutory authorities to discharge their duties without colourable exercise of power and within the framework of the law and not abuse the procedure of law for any ulterior motives. The Crl. Writ Petition No.829 of 2013 (O&M) 6 Criminal Procedure Code, of course, is expected to be followed in letter and spirit.
Further, the procedure to be adopted when a person is called upon to furnish security to keep the peace (other than on conviction), has been explained, to meet the objectives of Chapter VIII of the Code of Criminal Procedure, 1973, in Volume 3, Chapter 3 of the Punjab and Haryana High Court Rules and orders.
The procedures, as laid down in the High Court Rules and Orders (Chapter 3 Volume III), should additionally be circulated to all the District Magistrates, for information and compliance, who would further circulate them to all Executive Magistrate in their jurisdiction, as are exercising powers under the Criminal Procedure Code.
The Registry of this Court is, accordingly, directed to circulate the same to all District Magistrates in the States of Punjab.
With the above observations, this writ petition is disposed of.
18.04.2013 ( Amol Rattan Singh ) Anand Judge