Punjab-Haryana High Court
Gurbax Singh Bains vs State Of Punjab on 21 February, 2013
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CRM No. M-6656 of 2011 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Misc. No. M-6656 of 2011 (O&M)
Date of Decision:- 21.2.2013
Gurbax Singh Bains
....Petitioner
Versus
State of Punjab
.....Respondent
CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR Present: Mr.Jagjot Singh Lalli, Advocate for the petitioner.
Mr.Rajpreet Singh Sidhu, AAG Punjab for the State.
MEHINDER SINGH SULLAR, J. (oral) Exhibiting the importance of supremacy of rule of law, this Court in case Major Gurjinder Singh Benipal v. State of Punjab and others 2012(4) R.C.R. (Criminal) 743 has ruled as under:-
"Rule of law is supreme. Law has to prevail at any cost. The prime responsibility to see that rule of law prevails may be that of the State and the State machinery but the violation thereof, if ever noticed, when some bigwigs are involved where the State may be seen faulting in performance of its duties, the Courts have to step in to ensure that the law prevails. An over-riding duty of the Courts has always been to ensure administration of justice. This is to maintain public confidence of people at large in the rule of law and justice and to uphold the majesty of law. When some complaint is made of any indifferent action or lethargy against the might of administration and where the State machinery fails to protect citizens lives, liberty and property or where investigation is conducted to help the highly placed accused persons, it would be but natural for the Courts to step in to prevent this undue miscarriage of justice. Doing justice is the paramount duty of the Courts and the same can not be abrogated, diluted or diverted by permitting manipulative CRM No. M-6656 of 2011 (O&M) 2 investigation to leave the accused of the hook by some crook methods.' The Courts have then to ensure that the authority of the State is not misused in this manner to shield men of might. The Courts have to do so to maintain the trust of the society in the rule of law and majesty of law, otherwise justice delivery system would suffer a serious scar, rendering the Courts almost negatory."
2. Sequelly, what cannot possibly be disputed here is that Hon'ble Apex Court in case Babubhai v. State of Gujarat and others (2010) 12 Supreme Court Cases 254 has considered the scope and jurisdiction of the Court to interfere in such matter of investigation. It was held that the Court should direct de novo investigation to prevent the miscarriage of justice, if investigation is tainted, biased, suffers from irregularities and is conducted in mala fide exercise of power by police causing serious prejudice and harassment to any party. The Court has gone to the extent that even the charge sheet filed and any other order issued by the investigating agency pursuant to such vitiated investigation is also liable to be quashed.
3. Not only that, further examining the provisions of Sections 156, 157 and 482 Cr.PC and in the light of protection afforded by Articles 20 & 21 of the Constitution of India, it was held that the investigation must be fair, transparent and judicious. Tainted, biased investigation, the consequent prejudice and harassment to any party cannot legally be permitted to continue. It was further held as under:-
"The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that the investigation was unfair and carried out with an ulterior motive. It is also the duty of the investigating officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The investigating officer should be fair and conscious as to rule out any possibility of fabrication of evidence and his impartial conduct must CRM No. M-6656 of 2011 (O&M) 3 dispel any suspicion as to its genuineness. The investigating officer "is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth. Not only fair trial but fair investigation is also part of constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. Therefore, investigation must be fair, transparent and judicious as it is the minimum requirement of rule of law. The investigating agency cannot be permitted to conduct an investigation in a tainted and biased manner. Where non- interference of the court would ultimately result in failure of justice, the court must interfere. In such a situation, it may be in the interest of justice that independent agency chosen by the High Court makes a fresh investigation".
4. Therefore, if the crux of ratio of law laid down in the aforesaid judgment is put together, then, it would clearly emerge, not only that, a fair trial but fair investigation is also a part of constitutional right of a citizen. The investigation, thus, has to be fair and judicious, which is the minimum requirement of rule of law. This constitutional guarantee is not only available where the tainted investigation is directed against the accused persons having an affect on him. It would equally be for the aggrieved person and a victim to allege that he is not being treated fairly by injudicious investigation to favour the accused persons. Thus, it would violate his constitutional rights. The concept of fair trial and fair investigation is not only to be considered from the point of view of liberty or the right of the accused. At the same time, the society and the victim would also suffer on account of injudicious investigation and fair trial becomes a casualty. Similarly, the person, who is accused of a serious offence, would be let off not because of lack of any evidence or material, but because of unfair and injudicious investigation. Reliance in this regard can also be placed on the judgment of Hon'ble Supreme Court in case Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi) CRM No. M-6656 of 2011 (O&M) 4 (2010) 6 SCC 1.
5. In this manner, the epitome of ratio of law laid down by Hon'ble Apex Court is that the fair investigation and trial are integral part of administration of criminal justice. The investigation is not mere a formality, but at the same time, it should appear to have been conducted in a fair manner, which is a part of constitutional right of a citizen. The police cannot be assigned the role of a Court to decide the intricate questions of commission of a particular offence.
6. The matrix of the facts & material, which needs a necessary mention for the limited purpose of deciding the core controversy, involved in the instant petition and emanating from the record, is that Gagandeep Singh Bains, son of petitioner Gurbax Singh Bains was studying in MBA Course at Thapar University, Patiala. On 28.9.2010, Gagandeep Singh Bains, Zorawar Singh son of Gurmit Singh, the then SDM Patiala, Gaurav Verma son of R.S.Verma and Jaskaran Singh son of B.S.Brar were returning from Chandigarh to Patiala in Endeavour Car, bearing registration No.PCP-17. As soon as, at about 2.30 AM (morning), the Endeavour car reached the Liberty Chowk, Rajpura, in the meantime, a truck, bearing registration No.HR-58-3264 was stated to have come from behind in a very rash and negligent manner. It was claimed that the driver could not control and the truck rammed into the Endeavour car & caused the accident. The occupants of the car sustained injuries, Gagandeep Singh Bains and Gaurav Verma subsequently succumbed to the injuries, whereas Zorawar Singh and Jaskaran Singh were removed in an injured condition to the hospital at Chandigarh. Subsequently, in the CRM No. M-6656 of 2011 (O&M) 5 wake of statement of complainant Jarnail Singh Sarpanch son of Jagdish Singh, a criminal case was registered against the driver of the truck, vide FIR No.219 dated 28.9.2010 (Annexure A2), on accusation of having committed the offences punishable u/ss 279, 304-A, 337 and 427 IPC by the police of Police Station Rajpura City, District Patiala.
7. Likewise, disputing the theory of accident projected by the police, petitioner Gurbax Singh Bains, an unfortunate father, claimed that his son Gagandeep Singh Bains was brutally murdered by accused Zorawar Singh and his accomplice. The police of Police Station City Rajpura had helped accused Zorawar Singh and his other co-accused under the influence of his father Gurmit Singh, who was posted as SDM at Patiala at the relevant time (now posted as such at Jagraon) and converted the case of murder into the case of accident. According to the petitioner that instead of booking accused Zorawar Singh and Jaskaran Singh for the offence of murder, the police allowed them to escape from the place of occurrence.
8. Similarly, it was further pleaded in para 10 of the main petition as under:-
"That after a lot of persuasion, Jaskaran and Zorawar separately met me along with their parents after 35/40 days of the incident. Their statements (which I got recorded in CD's Annexure A-5) were found to be totally contradictory. These contradictions regarding purpose of assembling of these four students on 27.9.2010 evening, route adopted for Rajpura and place of their dining together, etc. lead to the reasonable belief that they had murdered Gagandeep and Gaurav. Zorawar Singh's father Sh.Gurmit Singh SDM Patiala also seemed to be a part of the conspiracy of murders for (i) managing Gagandeep's exit from hostel through his son (Zorawar) by arranging official car of BDPO Samana, (ii) providing Endeavour car PCP 17 fitted with red beacon light to commit the murder, (iii) after ensuring death CRM No. M-6656 of 2011 (O&M) 6 of Gagandeep and Gaurav, approaching SDM Rajpura and DSP Rajpura to ensure escape of Zorawar and Jaskaran from the site of incident, (iv) approaching high ranking police officers i.e. IG, DIG and SSP Patiala on 28.9.2010 morning for help, (v) planting his relatives named Jarnail Singh and Kirpal Singh to file a false complaint against an unknown driver of parked truck HR-58-3264, (vi) Misleading media by spreading news of his son Zorawar along with his accomplice Jaskaran being seriously hurt in 'accident', (vii) by hiding his actual location on day of crime i.e. as per Zorawar his father was at England, as per SDM's wife her husband was at Hemkunt Sahib, and as per SDM himself he was at Hazur Sahib. (Please refer CDs Annexure -A5)."
9. Leveling a variety of allegations and narrating the sequence of events in detail in the petition and appended photographs, letters & documents (Annexures A4 to A18), in all, the petitioner claimed that although his son Gagandeep Singh Bains was murdered by Zorawar Singh son of Gurmit Singh SDM and his accomplice, but the police has only termed it a case of accident and falsely registered a case u/ss 279 and 304-A IPC against the driver of the truck. He approached the concerned authorities and moved the petition (Annexure A14) to Director General of Police as well, for redressal of his grievance and for enquiry at the level of DGP, but in vain, which necessitated him to file the present petition. Similar request made by the petitioner was also received by this Court, which was ordered to be put up on judicial side. In the background of these allegations, he has instituted the instant petition to hand over the investigation of the case to Central Bureau of Investigation in the manner depicted here-in-above.
10. The respondent-State refuted the prayer of petitioner and DSP filed the reply on its behalf, inter-alia pleading certain preliminary objection of maintainability of the petition on the ground that the CRM No. M-6656 of 2011 (O&M) 7 investigation of the case has already been transferred to Additional Director General of Police (Crime), by virtue of letter dated 14.2.2011 and the matter is being enquired into by the ADGP Crime. Instead of reproducing the entire contents of the reply and in order to avoid the repetition, suffice it to say that the State of Punjab has attempted to reiterate the contents contained in the FIR (Annexure A2). However, the respondents have stoutly denied all other allegations contained in the main petition and prayed for its dismissal.
11. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, the present petition deserves to be partly accepted in this context.
12. Such thus being the legal position and material on record, now the short & significant question, though important, that arises for determination in this petition is, as to whether the investigation already conducted by the police of Police Station Rajpura City is fair and legal or otherwise?
13. Having regard to the rival contentions of learned counsel for the parties, to me, the answer must obviously be in the negative.
14. As is evident from the record that as per the initial reply of the respondent and during the course of preliminary hearing, it was made to understand that the matter has been entrusted to DIG (Crime) and a Coordinate Bench of this Court (Ranjit Singh, J.) passed the following order on 18.11.2011:-
"The State counsel points out that enquiry in this case is being conducted by Sh.Kanwar Vijay Partap Singh, D.I.G. (Crime). He is near CRM No. M-6656 of 2011 (O&M) 8 completion of the enquiry and has prayed for one month's more time to collate the material so far collected during the investigation.
Adjourned to 21.12.2011 for further proceedings."
15. Consequently, Kanwar Vijay Partap Singh, DIG (Crime Branch) has actually conducted the investigation and recommended to register a case of murder, vide his report Memo No.496/Reader dated 27.12.2011 (Annexure A26), which, in substance, is as under:-
"From the perusal of statements of concerned persons, witnesses, inquiry file and call details, the following facts have come into light:-
• Jarnail Singh son of Jagjit Singh resident of village Bir Kheri (on whose statement, the FIR No.219 dated 28.9.2010 under Section 304A, 279, 427 IPC PS City, Rajpura has been found registered) and Kirpal Singh s/o Hari Singh have been shown at the spot in wrong manner by the Investigating Officer.
• It has been found that the statements given by Jarnail Singh son of Jagjit Singh resident of village Bir Kheri (on whose statement FIR No.219/10 has been registered) and his companion Kirpal Singh son of Hari Singh, during the enquiry have been given under a deliberate intention.
• From the Tower locations of Phone No.9815919369 of Jarnail Singh, on whose statement the FIR has been found registered and Phone No.94641-45419 of Kirpal Singh eye witness, it has been found that on the day of occurrence and prior to occurrence till late night they remained at Patiala and have not been found having come to Chandigarh but showing their presence on the incident spot is also suspicious.
• During inquiry, in the report presented by Investigating Officer ASI Hari Singh, there was no mention of recording of statements taken in connection with registration of FIR, clearly shows that Investigating Officer himself wrote statements for taking action and got the signatures of Jarnail Singh and Kirpal Singh thereon. • In the statements recorded at the time of registration of FIR, it is mentioned that truck hit the accidental car from behind side and stopped ahead. But from the photographs of the spot it is clear that truck is stationed at one side of the road and car is seen badly damaged at front side of the truck.CRM No. M-6656 of 2011 (O&M) 9
• As per the statement given by Jatinder Singh, Conductor of Truck, witness of the occurrence, again on 07.2.2011, a car coming from Patiala side stopped near their break downed truck, out of which two clean shaved persons, one having cap on his head came down and another car came from other side, which also stopped there and two persons of first car pulled out two persons of other car and started giving beatings to them and I under fear ran towards the side where driver had gone to take oil. No accident has taken place with our truck.
• Truck driver Pardeep Dumar, again on 7.12.11 told that on 27/28.9.2010, I along with my cleaner Jatinder Singh was going from Paunta Sahib to Rajpura on truck and at about 1.30 night, oil of truck ended near liberty chowk, Rajpura and I by leaving my cleaner with truck and parking truck on a side, went to take oil from Petrol Pump. After some time my cleaner came running towards me and told that some persons have fought in front of our truck.
• During investigation, the Investigating Officer ASI Hari Singh has mentioned with regard to truck in para No.3 of zimini No.7 dated 21.12.2010 that as per the enquiry of driver Pardeep Kaur (Sic.
Kumar) made at the time of arrest of Driver, two persons died and two injured because of turning of vehicle by hitting a stationed truck which was in non-working condition.
• Investigating Officer has mentioned that driver was present at the spot at the time of arrest, but as per the statements of truck driver and conductor, driver Pardeep Kumar was not present at the spot. This clearly shows that the investigation has been conducted by the Investigating Officer concealing the true facts.
• During the investigation, as per case file, the Investigating Officer had not taken into possession the clothes of deceased Gagandeep Singh Bains and Gaurav Verma after the postmortem of dead bodies from where the estimate of injuries could be made, which also raises suspicion regarding concealment of facts by the Investigating Officer. • A perusal of location of call detail of mobile No.90411-08500 i.e. of driver Zorawar Singh, its location is near Pargo Food, GT Road, Rajindergarh on 28.9.2010 at 1.27.22 hrs and tower location of mobile No.78376-70820 i.e. of deceased Gaurav Verma, is near Railway Station Sirhind Road Rajpura at 01.27.21. This indicates that car driver Zorawar Singh and Gaurav Verma were not together in the same vehicle.
CRM No. M-6656 of 2011 (O&M) 10• On 28.09.2010 at 01.27.22 a call of duration of 18 seconds has been found from Zorawar Singh on his mobile No.90411-08500 to mobile No.78376-70820 i.e. mobile of Gaurav Verma, which indicates that both were separate.
• As per the statements of Zorawar Singh, after taking meal at Gill Dhaba, when they started to Patiala then on the way Gaurav Verma and Jaskaran Singh asked them to play VDO CD, but he denied. But as per the statement of Jaskaran Singh, after taking meal on returning to Patiala through vehicle, he slept and has no knowledge of accident. The contradiction in statements of both and the statement of Jaskaran Singh regarding sleeping in a journey just of few minutes is also suspicious.
• Apart from this, it is also been found that car driver Zorawar Singh was not seriously injured and was in senses at the time of occurrence but instead of registering the FIR on the basis of his statement, the registering of FIR on the basis of statement of Jarnail Singh son of Jagjit Singh resident of Village Bir Kheri (who was not present at all at the spot) is far from reality.
As per the inquiry conducted by me, from all the above mentioned circumstances, it has been found that the FIR No.219 dated 28.09.2010 under Sections 279, 304-A, 427 IPC, PS City Rajpura has not been registered on the basis of true facts and it is also clear that investigation has also been conducted by concealing the true facts; especially from the statement of witness at the spot i.e Conductor Jatinder Singh who has stated regarding quarrel between persons of two different cars which clearly shows that this case is not a case of road accident. As the matter is very serious, custodial interrogation of concerned persons is very necessary. As such it is recommended to register a case of murder and for bringing truth into light, the investigation may be got done through an independent and impartial agency."
16. Thus, it would be seen that although the DIG (Crime) has actually conducted the inquiry in a very fair manner and submitted his report (Annexure A26), but, strange enough, the State of Punjab was stated to have constituted a Special Investigating Team (for brevity "the SIT") to nullify the findings of DIG (Crime), without any legal basis. CRM No. M-6656 of 2011 (O&M) 11 Moreover, the case projected by the petitioner finds further corroboration from the proceedings (Annexure A40). As soon as, the petitioner came to know, he moved a petition and brought it to the notice of this Court. A Coordinate Bench of this Court (Rameshwar Singh Malik, J.) passed the following order on 24.4.2012:-
"Applicant-Sardar Gurbax Singh Bains submits that the respondents- police authorities are intending to present the report under Section 173 Cr.PC, on the basis of investigation conducted by the Special Investigation Team (S.I.T.) constituted vide order dated 4.1.2012, which came to be disbanded by the State of Punjab, vide order dated 24.1.2012. He further submits that once the SIT has been disbanded vide order dated 24.1.2012, the S.I.T. has no jurisdiction to proceed further to prepare the conclusion report.
Notice of the application to the non-applicants for 23.7.2012. In the meantime, the report under Section 173 Cr. PC (challan) shall not be presented before the court concerned, on the basis of the report dated 1.3.2012 submitted by the S.I.T. constituted vide order dated 4.1.2012, which had been disbanded vide order dated 24.1.2012.
However, the investigating agency would be at liberty to proceed further on the basis of the report dated 27.12.2011 submitted by the Deputy Inspector General of Police (Crime), Punjab, recommending addition of the offence under Section 302 IPC to FIR No.219 dated 28.9.2010 under Sections 304-A, 279, 337, 427 IPC registered at Police Station Rajpura, Distt. Patiala.
A copy of this order be given dasti to the learned State counsel as well as to the petitioner, who is appearing in person, under signatures of the Court Secretary attached to this Bench, for onward submission to the authorities concerned for compliance thereof.
To be listed for further consideration on 23.7.2012."
17. Sequelly, on 23.7.2012, the following order was passed by this Court:-
"Affidavit of Vibhu Raj, Deputy Inspector General of Police, Crime, Punjab filed in the Court today is taken on record and copy thererof has been supplied to the petitioner, who is appearing in person.
Learned counsel for the State, on instructions from Inspector Manjit Singh, Crime Branch, Punjab, submits that the newly constituted Special CRM No. M-6656 of 2011 (O&M) 12 Investigating Team (S.I.T.) headed by Kunwar Vijay Partap Singh, is already seized of the matter. However, he submits that the newly S.I.T. would require reasonable time to investigate the matter.
On his request, adjourned to 31.10.2012.
In the meantime, fresh status report be filed by way of affidavit of the concerned officer."
18. Meaning thereby, if the entire sequence of events as narrated here-in-above, is put together, then, to my mind, the conclusion is inescapable and irresistible that the initial investigations conducted by the police of Police Station City Rajpura, by virtue of which, the case was projected to be of accident, are not only arbitrary & illegal, but mala fide as well, at the instance of Gurmit Singh, the then SDM Patiala, father of accused Zorawar Singh. Once the DIG (Crime) Kanwar Vijay Partap Singh has conducted the inquiry in a very fair manner and submitted a cogent report (Annexure A26) of investigation, in that eventuality, it was the mandatory duty of the respondent-welfare State to implement it and to act accordingly. Why this report was not implemented, remains an unfolded mystery, leaving the petitioner in lurch to wander from pillar to post to seek justice, but in vain. On the one hand, he has lost his son and on the other hand, he is not getting justice of fair investigation and is roaming here & there since 2010. He is not claiming any estate, but he is harping for proper investigation of the case of murder of his son. The police authority is delaying the matter on one pretext or the other, for the reasons best known to it, in the manner depicted here-in-above.
19. Therefore, keeping in view the peculiar facts and the special circumstances of the case, the petitioner is entitled to some amount of compensation in this respect, which is quantified ` 50,000/-, initially to CRM No. M-6656 of 2011 (O&M) 13 be paid by the State of Punjab. Needless to mention that subsequently, the State may fix the responsibility after holding an inquiry and recover the amount of compensation from the respective salaries of the erring officers. To me, it would be in the interest and justice would also be sub- served if the respondent-State is directed to implement the report (Annexure A26) of Kanwar Vijay Partap Singh, DIG (Crime) to prevent the failure of justice.
20. In the light of aforesaid reasons, taking into consideration the totality of all the facts, special circumstances, oozing out from the record as discussed here-in-above and without commenting further anything on merits, lest it may prejudice the case of either side during the course of investigation or trial of the main case, the instant petition is hereby partly accepted. The State of Punjab is directed to give effect & implement the indicated report of DIG (Crime) and Senior Superintendent of Police, Patiala is also directed to monitor, ensure the completion of investigation and to act in pursuance of report (Annexure A26) of DIG (Crime), preferably within a period of three months from the date of receipt of certified copy of this order.
21.2.2013 (Mehinder Singh Sullar)
AS Judge
Whether to be referred to reporter? Yes/No