IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 10119 of 2007 Date of Decision: May 28, 2008 Raninder Singh and another …Petitioners Versus State of Punjab and others …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MRS. JUSTICE SABINA Present: Mr. Atul Nanda, Advocate, with Mr. Puneet Bali, Advocate, for the petitioners. Mr. R.S. Khosla, Addl. Advocate General, Punjab, for the respondents. M.M. KUMAR, J. This case reveals political overtones in the State of Punjab between two groups of political leadership. The instant petition has been filed under Article 226/227 of the Constitution for issuance of direction to the respondents that ten days notice be given to the petitioners in any case to be registered against them anywhere in the State of Punjab. C.W.P. No. 10119 of 2007 2. Some facts would be necessary for putting the controversy in its true perspective. Raninder Singh-petitioner No. 1 is the son of a former Chief Minister of Punjab Capt. Amarinder Singh. Raminder Singh Thakhar-petitioner No. 2 is a close relation of the former Chief Minister being the son-in-law of Raja Randhir Singh, who is cousin brother of Capt. Amarinder Singh. Shri Parkash Singh Badal-respondent No. 4, was the Chief Minister of Punjab from February 1997 to February 2002, whereas Capt. Amarinder Singh, father of petitioner No. 1, became the Chief Minister thereafter. After the elections of the Punjab State Legislative Assembly, held on 13.2.2007, Shri Parkash Singh Badal-respondent No. 4 again became Chief Minister in the State of Punjab. The allegations made by the petitioners have to be examined in the light of the aforementioned outlined facts. 3. The petitioners have made following allegations. They have alleged that the political and personal rivalry between the family of Shri Parkash Singh Badal-respondent No. 4, the present Chief Minister and the family of the petitioners date back to the late 1990’s. In para 5 of the petition it has been alleged that when Shri Parkash Singh Badal-respondent No. 4 came to power as Chief Minister of Punjab from February 1997 to February 2002. The State of Punjab, which had then recovered from the debilitating effects of terrorism and it was going through a phase of rampant political corruption. There was rampant corruption, bribery and gratification of public offices, which was an intrinsic part of common Government functions 2 C.W.P. No. 10119 of 2007 such as recruitment of officers, transfers, postings, development projects, Government tenders etc., which resulted into shifting of several industries from Punjab to neighbouring States. It was at that time that Capt. Amarinder Singh was appointed as President of the Punjab Pradesh Congress Committee and brought the issues of corruption, transparency and public accountability into an open forum. In the general elections of the Punjab Legislative Assembly held in January/February 2002, this was the core issue and after winning the elections Capt. Amarinder Singh found himself effectively translated into an arch political rival of Shri Parkash Singh Badal-respondent No. 4. He assumed charge as a Chief Minister of Punjab on 26.2.2002. after his installation as Chief Minister, he started inquiry into various corrupt acts of the officials and Ministers of the previous Parkash Singh Badal’s Government. Even cases under Prevention of Corruption Act, 1988, were registered against Shri Parkash Singh Badal-respondent No. 4 & his son and reports under Section 173 Cr.P.C. were filed; and a Special Fast Track Court headed by a Special Judge at Ropar was created to deal with the cases arising out of corruption. The notification dated 17.11.2003, setting up Special Court to deal with corruption cases, was challenged by Shri Parkash Singh Badal-respondent No. 4, which was repelled by this Court in C.W.P. No. 9410 of 2004, decided on 2.9.2004. Even the Special Leave Petition was dismissed by Hon’ble the Supreme Court by a detailed judgment dated 6.12.2006 (now reported as Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1). It has 3 C.W.P. No. 10119 of 2007 been pointed out that during the tenure of Capt. Amarinder Singh as Chief Minister, the police machinery was never used in a manner to harass Shri Parkash Singh Badal-respondent No. 4 or his family members nor they were ever arrested during investigation. 4. On account of various cases instituted by Capt. Amarinder Singh, the father of petitioner No. 1 and close relation of petitioner No. 2, a spate of cases have been registered against the family of the petitioners, which emanate from the political vendetta and out of personal vindictiveness. It has been alleged that the State policing authorities, especially the Vigilance Bureau has been used to launch a tirade of false cases and action against the petitioners by arresting them with the object of torturing and publically humiliating them. The object is not to segregate the accused by bringing them within the four corners of law but it is to seek recompense and revenge for the fact that Capt. Amarinder Singh and his Government had instituted inquiries into the corrupt acts of Shri Parkash Singh Badal-respondent No. 4 and his family members. The trial is still going on in the Court of Special Judge, Ropar. On the basis of the aforementioned allegations, a grave and serious apprehension has been expressed by the petitioners that they are likely to be involved in false cases with oblique motives. In support of their allegations, the petitioners have placed on record various Press Notes as Annexure P- 1 (Collectively). 5. It has also been alleged that during the election campaign Shri Parkash Singh Badal-respondent No. 4 had given it as a election 4 C.W.P. No. 10119 of 2007 promise that if he and his family members are returned to power, they would arrest and drag each and every member of the petitioners’ family behind bars and teach them a lesson. The petitioners have claimed that these statements have been documented by the press and electronic media and are within the public domain. There are then allegations emanating from the infamous scandal concerning scandal of land by Ludhiana Improvement Trust and an FIR No. 5, dated 23.3.2007, has been registered against Capt. Amarinder Singh, the father of petitioner No. 1. The petitioners have claimed that Capt. Amarinder Singh had ordered an inquiry to be conducted by the Vigilance Bureau, who submitted a detailed report, cataloguing the entire tender process and arriving at a finding of liability against officials of the Ludhiana Improvement Trust and that he had dissolved the Trust. But despite that an FIR was registered being FIR No. 5, dated 23.3.2007, under Sections 409, 420, 467, 468, 471, 120- B IPC read with Sections 7, 13(1)(c)(d), 13(2) and 14 of the Prevention of Corruption Act, 1988. It is further alleged that at the instance of Shri Parkash Singh Badal-respondent No. 4, search warrants were sought for the search of the residence of Capt. Amarinder Singh and his wife. 6. Apprehending arrest, Capt. Amarinder Singh filed a petition in this Court bearing Criminal Miscellaneous No. 21713-M of 2007, under Section 438 Cr.P.C. for grant of anticipatory bail in case FIR No. 5, dated 23.3.2007. He was given interim bail, vide order dated 30.3.2007 (P-2). The Special Leave Petition (Criminal) 5 C.W.P. No. 10119 of 2007 No. 3477 of 2007, against the interim order was dismissed by Hon’ble the Supreme Court on 18.6.2007 (P-3). The petitioners also filed an application for pre-arrest bail, bearing Criminal Miscellaneous No. 33867-M of 2007 in case FIR No. 5, dated 23.3.2007, which was granted on 24.5.2007 (P-4). It is pertinent to notice that in the order dated 24.5.2007 (P-4), the political rivalry between the family of the petitioners and Shri Parkash Singh Badal-respondent No. 4, has been noticed and the learned Judge has declined the custodial interrogation on the ground that the investigation was not being carried by an impartial agency like CBI. 7. The petitioners have also made a reference to the Punjab Intranet Company case wherein it has been alleged that petitioner No. 1 is having dubious hawala links and transactions. On the basis of allegations made by Shri Parkash Singh Badal-respondent No. 4 a communication was sent to the erstwhile Government at the Centre, headed by Shri Atal Bihari Vajpayee. Thereafter, investigation was initiated by the Enforcement Directorate. At that point of time, Capt. Amarinder Singh himself appointed a Commission of Inquiry under Section 3 of the Commission of Inquiries Act, 1952, headed by Justice B.S. Nehra, a retired Judge of the Punjab and Haryana High Court. The Commission in its detailed report concluded that the documents relating to the allegations against the petitioners were fabricated. Even the aforementioned report of Justice Nehra’s Commission was challenged by filing C.W.P. No. 1487 of 2006 in this Court. The writ petition was dismissed and the Division Bench 6 C.W.P. No. 10119 of 2007 in the concluding para of the judgment noticed that filing of the writ petition was not an act of innocence and preferred to observe judicial restraint. 8. The petitioners have also levelled allegations that the Vigilance Bureau has been packed with such officers who are compliant to the orders of Shri Parkash Singh Badal-respondent No. 4, which has been done by ignoring the provisions of the State Vigilance Commission Act, 2006 and the direction issued in the case of Parkash Singh Badal (supra). In fact, the State Vigilance Commission Act, 2006, has been repealed. By doing all these acts, the police officers of the Vigilance Bureau have been fabricating evidence against the petitioners, their associates and family members, which supports their grave and serious apprehension that they would be involved in false cases for the purpose of humiliating them for political reasons. 9. The petitioners have also listed few cases where third degree methods have been adopted by the police officers at the instance of the respondents. The case of Bharat Inder Singh Chahal, who was Media Advisor of the then Chief Minister Capt. Amarinder Singh, has been cited. Bharat Inder Singh Chahal had approached this Court by filing Criminal Miscellaneous No. 35545-M of 2007. On 1.6.2007 (P-7), this Court has passed the following orders:- “In this background, when the petition has been filed under Section 482 Cr.P.C. I do not find any legal impediment in granting some temporary relief to the 7 C.W.P. No. 10119 of 2007 Petitioner particularly when this Court is closed for summer vacations, till re-opening, while directing that he shall not be arrested in any case by the Punjab Vigilance Bureau without giving him four day’s notice in advance so that he could file anticipatory bail before the competent Court. Accordingly, the petition is disposed of with the aforesaid limited direction which shall continue only till 04.07.2007.” 10. The petitioners have further highlighted that the respondents deliberately and falsely fabricated a case against Bharat Inder Singh Chahal under Section 307 IPC, registered by the Punjab Police, so as to by-pass the protection given to him by this Court in case FIR No. 105, dated 10.6.2007. Bharat Inder Singh Chahal reported to the office of the Vigilance Bureau, Ludhiana to associate himself with the investigation and he was arrested at 5.30 p.m. by the Punjab Police from the office of the Vigilance Bureau as the direction was only to the Punjab Vigilance Bureau to issue notice of four days, the case FIR No. 126, dated 12.6.2007, under Sections 384/406/420/467/468/471 IPC was registered against Bharat Inder Singh Chahal at Police Station Civil Lines, Patiala. Another case was registered vide FIR No. 227, dated 13.6.2007, under Sections 406/420/506 IPC at Police Station Kotwali, Patiala. He was given police remand in case FIR No. 126, dated 12.6.2007. Bharat Inder Singh Chahal then filed C.W.P. No. 9434 of 2007 and this Court issued direction to the respondent State to give him four days notice 8 C.W.P. No. 10119 of 2007 in any case to be registered against him. The petitioners have alleged that Bharat Inder Singh Chahal was physically tortured. When Bharat Inder Singh Chahal appeared before the trial Court on 14.6.2007, he made a specific statement alleging that he was taken to CIA’s office on 12.6.2007 where his legs were dragged apart and electric shocks were given to his private parts. He was dragged by his long hairs and one ASI was deputed to slap him. Before the trial Court Bharat Inder Singh Chahal begged for death rather than tolerating torture and humiliation. Thereafter the trial Court refused police remand and sent Bharat Inder Singh Chahal to judicial custody. The order of the trial Court, dated 14.6.2007, has been placed on record as Annexure P-8. This Court took up C.W.P. No. 9434 of 2007 and while issuing notice of motion passed order dated 15.6.2007, which reads thus:- “ Insofar as the apprehension of the petitioner that he is likely to be arrested in FIRs that are to be registered against him in future, the matter is kept open to be decided at the final hearing of the petition. However, as an interim measure and keeping in view the spirit of the order dated 1.6.2007 (Annexure P-14) passed by this Court and also keeping in view the nature of the allegations that have been made that FIRs have been registered against the petitioner one after the other on 10.6.2006 (Annexure P-16), on 12.6.2007 (Annexure P-30) and on 13.6.2007 (Annexure P-31) it would be just and expedient that the petitioner till 4.7.2007 shall not be 9 C.W.P. No. 10119 of 2007 arrested in any case by the Punjab Police to be registered in future without giving him four days’ notice in advance. This interim direction shall continue only till 4.7.2007. This interim arrangement would, however, be subject to the order, if any, passed by the Supreme Court of India in the SLP filed against the order dated 1.6.2007 (Annexure P-14). The prayer for interim relief stands disposed of accordingly. List for hearing on 4.7.2007. Meanwhile, the respondents may file their replies with advance copy to the learned counsel for the petitioners.” (emphasis added) The Special Leave Petition directed against the aforementioned order was also dismissed on 18.6.2007 (P-10). 11. The petitioners have also levelled allegation against the Inspector General of Vigilance Shri Sumedh Saini. It has been alleged that Shri Sumedh Saini takes instructions from Shri Parkash Singh Badal-respondent No. 4 and his son Shri Sukhbir Singh Badal and that he has been charge sheeted by the Central Bureau of Investigation for wrongful detention of three persons. Some reference has also been made to the report of the International Human Rights Organisation concluding that he indulged in torture of persons in custody (P-11). Accordingly, it has been submitted that case FIR No. 5, dated 23.3.2007, is being investigated by officers whose 10 C.W.P. No. 10119 of 2007 profile and instructions are to arrest the petitioners and their family members with the object of subjecting them to police torture as a programme of political vendetta. The petitioners have filed Criminal Miscellaneous No. 38178-M of 2007 for grant of anticipatory bail and issuance of 10 days notice in the event of their arrest in the event of any case being registered, as has been noticed in the preceding para. In reply to the above mentioned petition, an affidavit has been filed by the Punjab Vigilance Bureau stating that no other case except FIR No. 5, dated 23.3.2007 has been registered with the Vigilance Bureau against the petitioners as on date. The aforementioned affidavit was filed by Shri Kanwarjit Singh Sandhu, Senior Superintendent of Police, Vigilance Bureau, Ludhiana on 4.7.2007 (P-15). 12. When the matter came up for consideration before this Court after notice and reply on 15.10.2007, it was indicated to the Court that the petitioners were not associating themselves with the investigation in case FIR No. 5, dated 23.3.2007. Accordingly, the petitioners were directed to appear before the investigating officer on 22nd and 29th of October, 2007 and 5th of November, 2007 at 10 a.m. in the office of Vigilance Bureau, Ludhiana. It was further clarified that if the Punjab Police or the Vigilance Bureau want to arrest the petitioners in connection with some other case then three days notice was required to be given to the petitioners. The aforementioned order dated 15.10.2007 reads thus:- 11 C.W.P. No. 10119 of 2007 “ Reply filed in the Court today is taken on record. Copy has been given to the counsel for the petitioners. Shri Khosla appearing on behalf of the State of Punjab states that till date, except FIR No. 5 dated 23.3.2007, there is no other case pending against the petitioners. He further submits that in the said FIR, the petitioners are on anticipatory bail. He further submits that in terms of the conditions of the anticipatory bail, the petitioners are not appearing before the Investigating Officer in spite of writing letters to them but the counsel for the petitioners states that no such letter had been received by the petitioners and that the petitioners are ready to appear before the Investigating Officer in that case on the dates fixed by this Court. Shri Khosla states that three dates be fixed for appearance of the petitioners before the Investigating Officer. Therefore, the petitioners shall appear before the Investigating Officer on 22nd and 29th of October, 2007 and 5th of November, 2007 at 10 AM in the office of Vigilance Bureau, Ludhiana. In the meanwhile, if the Punjab Police or the Vigilance Bureau wants to arrest the petitioners in connection with some other case, three days notice will be given to the petitioners. 12 C.W.P. No. 10119 of 2007 The main case is adjourned to 12.11.2007 for arguments.” 13. This order although has been complied with as the petitioners had appeared before the Investigating Officer on the specified dates but interim directions have been continuing till date, as is evident from the perusal of order dated 12.11.2007. 14. Written statement dated 20.7.2007 and an affidavit dated 15.10.2007, by Shri Pirthi Chand, Additional Secretary, Vigilance, Government of Punjab, have been filed on behalf of respondent No. 1. However, despite service, Shri Parkash Singh Badal-respondent No. 4 has not preferred to file any reply or affidavit refuting a number of allegations made against him in his personal capacity. 15. In the parawise reply filed by respondent No. 1, the conduct of the petitioners of not appearing before the Investigating Officer in case FIR No. 5, dated 23.3.2007, has been highlighted. It has further been asserted that the investigation of crime is made in accordance with law and not on the basis of instruction from any quarter whatsoever. Substantiating that the police in the respondent State is working independently of any influence, respondent No. 1 has claimed that the names of the petitioners were not mentioned in the original FIR and their names were included when during the course of investigation some allegations were found. The allegations that the petitioners are being harassed and humiliated have been refuted. It has, however, been conceded that there is no case pending against the petitioner except case FIR No. 5, dated 23.3.2007. It is 13 C.W.P. No. 10119 of 2007 claimed that the petitioners were involved in some other offences as revealed by Harpreet Singh Sandhu, who was taken into custody in the case concerning Ludhiana City Centre Scam. Therefore, the investigating agency is trying to find out whether it is hawala transaction or there is any other issue relating to the Ludhiana City Centre Scam. It has been asserted that they are definitely source of information and investigation by the Vigilance Bureau. It is claimed that the co-accused has made an admission and; that the petitioners and Capt Amarinder Singh have made public statements attempting to tarnish the image of the Investigating Officers. It is claimed that the investigation is being carried on in a fair manner without fear or favour. RIVAL CONTENTIONS: 16. Mr. Atul Nanda and Mr. Puneet Bali, learned counsel for the petitioners have argued that once such a grave enmity, political vendetta and rivalry exist between the family of the petitioners and the family of the present Chief Minister Shri Parkash Singh Badal- respondent No. 4 then it is imperative that the personal liberty of the petitioners be protected rather than permitting the same to be first violated and then granting it to the petitioners. In that regard, they have placed reliance on a judgment of Hon’ble the Supreme Court in the case of S.M.D. Kiran Pasha v. Government of Andhra Pradesh, (1990) 1 SCC 328. According to the learned counsel when a right is yet to be violated but there is a real threat, which is especially afflicted with political vendetta then a citizen must be 14 C.W.P. No. 10119 of 2007 granted protection of his rights. Learned counsel then submitted that this Court must restrain the potential violator of such rights from taking any steps towards violation which can be the proper way to ensure the protection of that right. Substantiating their arguments concerning political vendetta, learned counsel have placed reliance on order dated 24.5.2007, passed by this Court in Criminal Miscellaneous No. 33867-M of 2007 where findings have been recorded regarding political vendetta between the petitioners’ family and Shri Parkash Singh Badal’s family. Learned counsel have also referred to the order dated 19.11.2007, passed by Hon’ble the Supreme Court upholding the view taken by this Court, dismissing SLP (Crl.) No. 3433 of 2007. Learned counsel have maintained that despite the fact that specific prayer for expunging of the aforementioned findings and comments was made, these findings have been kept intact. Learned counsel have then relied upon the observations made by this Court in the order dated 30.7.2007, passed in Criminal Miscellaneous No. 21713-M of 2007, which was filed by the father of petitioner No. 1 Capt Amarinder Singh alongwith another. Learned counsel have pointed out to the concluding three paras of the order where it has been noticed that the father of petitioner No. 1 is a political rival of the present Government in the State and the SLP against the aforementioned order has also been dismissed. They have also made a reference to the order dated 1.10.2007, passed in Criminal Miscellaneous No. 32475-M of 2007 and other connected application filed under Section 438 Cr.P.C. 15 C.W.P. No. 10119 of 2007 17. Learned counsel have also argued that there is no complete bar for grant of protection of primary fundamental rights of the petitioners guaranteed by Article 21 of the Constitution by directing the State to issue them notice of 10 days before actually arresting them. In that regard, they have placed reliance on another order passed by this Court in Criminal Miscellaneous No. 35545-M of 2007 (P-7). In that case, this Court has granted relief to Bharat Inder Singh Chahal that he was not to be arrested in any case by the Punjab Vigilance Bureau without giving him four days’ notice in advance so that he could file anticipatory bail before the competent Court and those directions were to be continued till the reopening of the Court i.e. till 4.7.2007. The aforementioned order was challenged before Hon’ble the Supreme Court in SLP (Crl.) No. 3475 of 2007, which was dismissed on 18.6.2007 (P-10). 18. Learned counsel for the petitioners have then referred to the judgment of Hon’ble the Supreme Court in the case of State of Maharashtra v. Mohd. Rashid, (2005) 7 SCC 56, and argued that although no blanket order restraining the police from arresting an accused on the basis of an FIR could be passed ordinarily, yet, it would depend on the facts and circumstances of each case. According to the learned counsel, Mohd. Rashid’s case (supra) was without any political overtones and there was no mala fide. They have maintained that had it been malicious and afflicted with political vendetta, the Supreme Court would have taken the view as has been taken by dismissing the Special Leave Petition on 18.6.2007 (P-10) 16 C.W.P. No. 10119 of 2007 and upholding order dated 1.6.2007 (P-7) passed by this Court. Therefore, it has been submitted