CIVIL WRIT PETITION NO.3670 OF 2004 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MARCH 7, 2011 Malwinder Jit Singh Waraich ..... Petitioner VERSUS Union of India .... Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. M.J.S.Waraich, petitioner in person. Mr. Anil Rathee, Standing counsel for Union of India. **** RANJIT SINGH, J. History of our freedom struggle is replete with stories of valour and sacrifices of individuals for their contribution for freedom of this country. The story and sacrifice of those who quit lucrative and budding careers in the Armed Forces to join the native Indian National Army on the call given by Neta Ji Subhash Chander Boss may also be well known. However, the individual sacrifice of large number of soldiers, who would have suffered individually would lie buried in some of the archives of history of Nation or the Army and no CIVIL WRIT PETITION NO.3670 OF 2004 :{ 2 }: efforts appear to have been made to dig the same and to bring it into the focus of the Nation. It may be partially because the Army was under strict control of foreign rulers, who must have been too keen to put it under their wraps, lest it led to some revolt in the Armed forces. It would be, however, unfortunate to notice the conduct of the present day regimes to help hiding this historical blunder and refusing to correct the same in an effective manner. Rather they are seen going overboard to defend the same or the action and, thus, in a way facilitating to perpetuate some illegalities to belittle the extreme sacrifice made by soldiers for freedom of this country. Present regime should have been keen to correct this historical infirmity so as to expose the hidden highhandedness on the part of the then rulers who ofcourse had motive to do so and to hide the same. But for a spirited effort made by a counsel of this Court having interest in the study of the history of freedom struggle of our country, a case of two custodial deaths of officers serving in the Army, would have remained buried in the archives of history of the country. His efforts would need appreciation, who, despite unresponsive bureaucracy pursued his mission with zeal and has brought this case to the stage of adjudication for correcting this historic mis-information buried in the records of State. Mr.M.J.S.Waraich, a counsel of this Court, has filed this petition in person and has argued the same with lot of dedication and perseverance to seek justice for two National of this great Nation, who had remained un-sung so far but had sacrificed their lives for the independence for our country. CIVIL WRIT PETITION NO.3670 OF 2004 :{ 3 }: Lt.Ajmer Singh and Capt.Maghar Singh were enjoying the status of officers in the British Indian Army and could have continued to enjoy the patronage of foreign rulers but chose the hard and a different and difficult path by joining Indian National Army by fighting for attaining independence for our beloved Nation. While in pursuit of studying history of freedom struggle, the petitioner, a counsel of this Court, came across a document annexed with the petition as Annexure P-1, showing that these two officers, who had joined Indian National Army (for short, “INA”) were done to death on 5.11.1944, after having been captured by the British Forces in June 1944. Annexure P-1 is a document, which is a proceedings of the Court of enquiry, which was assembled at Red Fort at Delhi on 9.2.1946 on the orders of Commander in Chief, India, for enquiring into the conduct of recovered prisoners of war, mentioned therein i.e. those two officers. The Court of Enquiry was presided over by Major P.Marlow of 3rd Gurkha Rifles with Captain L.S.Puar of Royal, Garhwal Rifles, being its Member. The court of enquiry assembled and took evidence to find out as to how these two officers switched over to INA and had died in the same cage with gun shot injuries on head. A perusal of this enquiry, which is so brief that, to be `farcical' would be the only apt word to describe the same. It apparently was done just to complete papers, to pass off two custodial death of officers concededly taken as prisoners of war as an act of suicide. The Court of Enquiry examined two witnesses only. Their version is contained in just one or one and half typed page, which includes some other details and name of officer constituting CIVIL WRIT PETITION NO.3670 OF 2004 :{ 4 }: the enquiry. Capt.F.E.Hotz had deposed that Lt.Ajmer Singh was taken as prisoner of war in Singapore in February 1942. As per his version, Lt.Ajmer Singh had voluntarily joined INA in July 1942 and had moved to Neesoon Camp where he became G.S.O.II of Ist Hind Field Force Group. It is stated that Lt.Ajmer Singh was promoted as Captain and in November 1942 moved with INA Advance Party to Rangoon and worked at Cushing High School until February 1943. In August, he was appointed Quartermaster of the High School and was selected as Commander of 3rd Homalian Sector in December 1943. The statement further proceed to say that the officer arrived in Mandalay for Indo-Burma Front and had surrendered to British Forces in Kezoma in June 1944. This witness has then disclosed abruptly that the officer was murdered in the Red Fort, Delhi by Capt.Maghar Singh on 5.11.1944. This is all what is recorded as evidence. No question asked, no explanation sought and his version is accepted as a gospel truth. The witness has not disclosed his source of information or knowledge. He is not an eye witness so as to give this account. It is all farcical and nothing else. Another witness, namely Capt.Ridout, is examined to give evidence that on 5.11.1944 at about 7 O'Clock in the evening, he was called to INA cages to investigate a shooting incident, when he discovered that Lt.Ajmer Singh and Capt.Maghar Singh were dead in the same cage with gun shot in the head. Again no effort made by the Court to find out anything further or details of the incident. He is not the one who was present at the time of incident, as is apparent from his version. No eye witness is examined. None would be CIVIL WRIT PETITION NO.3670 OF 2004 :{ 5 }: interested to find out the true state of affairs. Aim was to give it decent burial. Obviously, both the officers apparently were shot dead and case was passed off as a case of suicide by one after killing another as per agreed plan. A little intelligence on the part of the officers holding the enquiry, would have prompted them to ask as to how these officers came to possess weapon used in the incident. Such unfair enquiry, which is so bereft and laconic, had gone on to record an opinion that both these officers served with and aided enemy from July 1942 to June 1944. These two officers, who were earlier serving in the British Indian Army and concededly had been taken as prisoners of war, had died in the custody of the Armed Forces of so called Great Country professing itself to be governed by rule of law, had easily passed off this case of cold blooded murder as innocent deaths. The persons, who were responsible for the safe custody of these two officers, were fully accountable for these custodial deaths. No one could ever have questioned them. They were the rulers and persons dying ruled. This may explain the conduct of the then rulers but what about us who are now dealing with the issue after independence. Should not we all wake up and take notice of this inhuman conduct and assuage the hurt caused to these persons, their families and to the whole Nation, as such. This has awakened one public spirited person but why has not this shaken our consciences as a Nation. What about those who have responded to the case by filing reply. It is sad state of affairs to notice. In a reply filed on behalf of Union of India, Lt.Col.Naveen Kumar Anand serving as Assistant Judge Advocate General at Army CIVIL WRIT PETITION NO.3670 OF 2004 :{ 6 }: Headquarters, New Delhi, has responded to this cry by filing affidavit. He would say that he is conversant with the facts of the case as derived from the official record. I would have my doubts, if he is in any competent position to file this affidavit in response to an issue of such a great public importance raised in the writ petition. He would not have had any access to the record. His first objection is that this writ petition is filed after a lapse of 59 years of alleged occurrence. This would obviously show the insensitivity on his party in regard to the issues agitated in the petition. How could a delay matter in such an important issue, which is not significant from any individual perception but is of a great importance from the point of view of history of Nation and is relating to sacrifice made by two great sons of the Country. Surely, he would not like this historic blunder to perpetuate. Here was a chance for everyone of us to come clean and help in correcting this blunder of history. Alias! We are found wanting and have adopted a routine bureaucratic denial approach to justify highly illegal and motivated action, which was full of malicious action by the then foreign rulers. The next objection by the person filing the reply is regarding the territorial jurisdiction of this Court. He would plead that deaths took place at Delhi and hence, no cause of action has arisen under the jurisdiction of this Court. This technical objection can simply be ignored by noticing the position of forces stationed at Delhi at the relevant time, which even now are under the jurisdiction of Western Command, whose headquarters are and were under the jurisdiction of this Court. I would, thus, ignore this objection more so CIVIL WRIT PETITION NO.3670 OF 2004 :{ 7 }: as it was not pressed during the course of submissions made by the counsel for Union of India. The next objection raised is in regard to the locus of the petitioner. A petition filed in public interest to correct the historical infirmity, allowed to perpetuate so far is facing one technical objection after another. To overcome this, the petitioner has adopted a right and wise course by bringing in the L.Rs of one of the deceased officer. Thus, locus to claim damages would accordingly survive. I must express my sense of pride while noticing the attitude of off-springs of these two soldiers. L.Rs of one of the officer, namely, Capt.Maghar Singh, though available, have declined to come forward to claim compensation for the sacrifice of their forefather. It was revealed by the petitioner during the course of his submissions that L.Rs of Capt.Maghar Singh even declined to meet and discuss the issue. They are not even keen to claim some credit for this sacrifice, which is their rightful due. Fortunately, however, surviving daughter of late Lt.Ajmer Singh came forward to be substituted as petitioner being the sole surviving heir and was impleaded as a petitioner on 26.5.2010. The respondents filing reply may have to be reminded that the petitioner was not asking any compensation for himself but was primarily seeking correction of this wrong in larger public interest. It was more of a case of correcting this distortion of history and to get justice for those two officers, who were killed by the foreign rulers. Instead of helping the Court in correcting the facts so that history could be correctly noted for future, the respondents have made laborious attempts to give this issue a different colour and a CIVIL WRIT PETITION NO.3670 OF 2004 :{ 8 }: filmy twist to this extreme sacrifice made by these two officers. May be the respondents are under illusionary filmy syndrome to narrate a story, which would not only sound puerile but would be highly unbelievable and unworthy of any credence. While narrating the brief facts of the case, it is stated that Lt.Ajmer Singh had joined 16 Punjab Regiment in 1935 and was granted emergency commission in August 1941 in the British Forces. He proceeded to Singapore with 6/1 Punjab Regiment in January 1942 and was taken prisoner at the fall of Singapore. He had joined INA in early July 1942 and was sent to Burma with an Advance Party in November 1942. The Officer statedly had accompanied the Japanese in their advance to Manipur Plain and was attached to 142 Regiment. Capt.Maghar Singh was also with this Regiment. Lt.Ajmer Singh had allegedly carried out propaganda and patrolling for Japanese forces and was wounded in action on 10.5.1944 and handed over command of Butai, for which he was selected as Commander. The Officer was unable to keep up owing to his injury and being unable to walk, was statedly left behind by the Japanese and fell into the hands of British Troop. What would be sad to notice is the fact as disclosed in the reply by our own people to say that this officer was interrogated and revealed considerable amount of information. The person filing the reply still feels that it was against the National interest without realising that the late officers had fought for freedom of our country. The reply otherwise does not reveal anything different. As per the reply, this officer was kept with Capt.Maghar Singh at Red Fort by the British Forces. Here, then is given a filmy CIVIL WRIT PETITION NO.3670 OF 2004 :{ 9 }: twist, when it is stated, without revealing the source of this information, that these two officers over-powered the Sentry, who entered their enclosure, when Lt.Ajmer Singh allowed himself to be shot by Capt.Maghar Singh in accordance with the pre-arranged plan and later shot himself. This is stated to be on the basis of a letter written by Lt.Ajmer Singh before the incident, which was signed by both the officers and was found at the place of incident. Where is the original of this letter, would be a natural poser? It is not forthcoming. Even if it was available, it would be a document, which was obviously fabricated and framed by the foreign rulers to justify two cold blooded murders. Such a thing can happen only in movie. A soldier coming to the cage, allowing his weapon to be snatched and silently watching, one person being killed and another shooting himself without any intervention from anyone. It is too much to digest or accept. It is too farcical to believe and clearly a false and fabricated story coined to justify two murders. This Court certainly can not believe this story. The Union of India or the officer filing reply may believe it to be so to present it before this Court. I would outrightly reject this story, moreso, when the letter, which is the basis of so stating, is not forthcoming. This stand of the respondents, on appreciation, would need outright rejection, if one was to examine the conduct of the respondents, ever since the date of filing this petition. Before issuing notice, this Court has assured itself by asking the petitioner to provide authentic proof of documents relied upon. On the asking of the Court, the petitioner had placed photo copy of Annexure P-1 on CIVIL WRIT PETITION NO.3670 OF 2004 :{ 10 }: record and thereafter this Court had issued notice of motion. The case was then adjourned on numerous occasions for filing of reply. On 3.8.2005, the counsel appearing for the Central Government, on proper instructions, were to submit before the Court that no relevant record pertaining to the issue agitated in the petition was traceable. The counsel at that time had also raised a plea in regard to territorial jurisdiction of this Court to entertain the petition. This Court asked the counsel to place on record all facts by means of an affidavit. Then followed various adjournments to enable the respondents to file this affidavit and the case had to be adjourned for this purpose. This Court had then enquired from the counsel for the respondents if any original documents, copies of which had been included, were available or not. The process of adjournments began again till finally the counsel submitted before this Court that the respondents were unable to get this information/documents as these were available with National Archives, New Delhi. The respondents were then directed to make a request to National Archives to secure the necessary information/documents. Some record was then received and the counsel for Union of India was directed to show the same to the petitioner appearing in person in this case. Ultimately on 21.8.2006, this Court admitted the petition. Still, it has taken nearly five years to decide the case. The Court had to first deal with the objection in regard to locus, which was pressed by the counsel for the respondents. The petitioner then was able to search for L.Rs of the late officers. It certainly was no mean task to undertake this exercise. The self respect CIVIL WRIT PETITION NO.3670 OF 2004 :{ 11 }: of the L.Rs of one officer was such that he/they refused to come forward to seek any compensation for this extreme sacrifice done by their forefather. I am informed, and have good reason to believe so that the daughter of late Lt.Ajmer Singh, who has come forward, is more concerned in correction of this history, rather then to seek compensation. She has come forward as a petitioner only to blunt the hyper-technical objection raised by the respondents about the locus of the petitioner to maintain the petition, seeking compensation on account of these custodial deaths. Respondents could also have shown some sense of responsibility to come clean to correct this historical inaccurrency? They were not carrying any bags of foreign rulers, for which they were required to twist facts to defend these custodial deaths by raising a defence, which is worthy of rejection with contempt. No prudent person with any senses can believe this make belief story as projected. How could the respondents come out with the facts as stated in the reply, if they were not having record of the case available with them and had sought adjournment after adjournment, ultimately to procure something from the archives. The position still is that they have not been able to place any authentic information on record to substantiate their stand, which they have taken before this Court, a stand which is misconceived one. This stand would not inspire any confidence whatsoever. This story is unbelievable and I am not ready to believe it. It would deserve outright rejection. It would be reasonable to hold that these two officers could not have died in the manner as projected but apparently were shot dead, while in custody by the then regime and CIVIL WRIT PETITION NO.3670 OF 2004 :{ 12 }: projected as a case of deaths in the manner as is disclosed in the reply. The manner in which enquiry was held would be proof enough of the fact that false details were weaved to justify these killings. Had it been the true reflection of the events, the witness, whose weapon was snatched, could have easily been examined at the Court of Enquiry. No eye witness was examined to bring out the manner in which the deaths had taken place. This was the requirement even as per the then existing law. Death of a soldier has to be enquired by ordering a Court of Enquiry. Why this was not done, would speak volumes about the manner in which efforts were made to hide these two murders. This could be done only, as foreign rulers could do anything and get away with it. The story of tyranny of foreign rule, leading to endless death in a brutal manner is imbedded in leaves of history of freedom struggle. Who can forget the massacre of Jallianwala Bagh. So many innocent persons were brutally killed. Was it difficult to kill two officers? Let these two names be added on these leaves for posterity to remember and recollect these sacrifices. These two officers gave up their secure careers in the British Army and chose to join the National Forces to fight the British Rule for freedom of our country. They fought valiantly and were injured in their pursuit and had ultimately sacrificed their lives. Nation needs to salute them. I would shudder to guess as to why the foreign regime would have decided to do away with the lives of these two soldiers, taken as prisoners of war. It appears that some information had surfaced during their interrogation, which would have prompted the CIVIL WRIT PETITION NO.3670 OF 2004 :{ 13 }: then rulers to adopt this extraordinary and illegal mode to do away with these two precious lives of patriots. Indication on the lines may be had from the reply filed where it is stated that officer during interrogation “revealed considerable amount of information”. Was this the reason to do away with the lives of these two soldiers? Respondents have attached a brief precis of this case with reply as Annexure R-1. This contains copies of some notings then recorded for taking action for forfeiture of the pay of these two officers. It is recorded in these notings that Capt.Maghar Singh deliberately shot Lt.Ajmer Singh and had then committed suicide. This is stated to be a pre-arranged plan mutually agreed to by these two officers. After giving details of service rendered by these officers, it is noted that they had volunteered to serve the 2nd INA. Thereafter details of their participation in the efforts of INA are recorded, besides the manner in which they were captured. During interrogation, the officers claimed that they always had intention to escape and had advised espionage party sent out to do likewise. This noting is by Brigadier G.Leslie Mold and was recorded on 4.3.1946. This Brigadier has recorded that there is no need to go into details of deaths.Without any material, he has recorded that it is proved that after having disarmed the Sentry, Lt.Ajmer Singh allowed himself to be shot by Captain Maghar Singh with a pre-arranged plan, who later shot himself. Copy of the letter purported to have written by Lt.Ajmer Singh, which is on record, would obviously show that it could not have been written by someone who was planning to end his life. In this letter, reference is mainly made to the manner of classifying CIVIL WRIT PETITION NO.3670 OF 2004 :{ 14 }: activities of those caught under different categories. The author is noticed to have made grievance that one is let off whereas another is punished. Having made reference to these aspects and about one Jem. R.H.Ansari, it is recited in this letter that we would easily escape from here but did not think it to be proper and that this action is pure voluntary and nobody is to blame. These are lines recorded at the end of the letter and does not give any indication of a plan which these officers may have formed, as is being stated in the reply. There is no mention in the letter if these officers had decided to do away with their lives in the manner as is urged and it would, thus, not be possible to accept that mention made in the last line of this letter that this action is voluntary and nobody is to be blamed is related to the incident of deaths. I am