Crl. Revision No. 1390 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Rev.No.1390 of 2009 Date of decision:14.7.2011 Balkar Singh ... Petitioner versus CBI, Chandigarh ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.R.S.Cheema, Sr.Advocate, with Mr.K.S.Nalwa, Advocate, for the petitioner. Mr.Ajay Kaushik, Advocate, for CBI. ... JORA SINGH, J. Balkar Singh son of Hakam Singh has filed this revision petition to set aside the impugned order dated 4.3.2009 whereby application of discharge was dismissed and charges were framed against the petitioner under Sections 120-B/365/342/330/201/218 IPC in FIR RC No.1(S)/ 2003/SIU-XV/CHG dated 27.5.2003. Story, in brief, is that petitioner joined police department in the year 1990 as DSP and from May, 1992 to June, 1992, he was posted as DSP, Police Lines/Control Room with Police District Majitha during Counter Insurgency Operations. During terrorism in Punjab to protect police officers on duty in the terrorists affected areas, notification (Annexure P-1) dated 7.10.1983 was issued and all the districts of Punjab were declared to be disturbed areas. But subsequently, Punjab Government as per notification (Annexure P-2) dated 9.3.1989 had amended earlier notification dated 7.10.1983 and declared that only the areas comprising districts Amritsar, Crl. Revision No. 1390 of 2009 2 Gurdaspur and Ferozepur will continue to remain as disturbed areas under the Punjab Disturbed Areas Act, 1983. During Counter Insurgency Operations in Punjab in 1992, 12th and 90th Battalions of CRPF along with 6th Rashtriya Rifles of Indian Army were assisting the Police of Police District Majitha. On 8.5.1992, police party headed by SHO Udham Singh was holding a naka in the area of Village Bhorsi and apprehended Surjit Singh son of Harnam Singh and recovered a foreign made .30 bore Mouser along with 7 live cartridges. FIR No.64 dated 8.5.1992 under Sections 25/54/59 of the Arms Act was registered at PS Jandiala at 10.00 PM. Annexure P-3 is the copy of FIR No.64 dated 8.5.1992. During investigation of aforesaid FIR, Surjit Singh suffered disclosure statement that arms and ammunition of one Pipal Singh have been kept concealed in Mand area and can get the same recovered. As per disclosure statement while Surjit Singh was being taken to Mand area for recovery of arms and ammunition, then on the way, he pretended that he wants to answer the call of nature and was allowed to do so in the nearby fields but he ran away by taking the benefit of darkness. FIR No.65 dated 8.5.1992 under Section 224 IPC, PS Jandiala was registered against Surjit Singh at 11.40 PM. Copy of FIR No.65 dated 8.5.1992 is Annexure P-4. Efforts were made to apprehend Surjit Singh but police party failed to trace him. Ultimately he was declared proclaimed offender by the Court as per order dated 31.1.1994 (Annexure P-5). Paramjit Kaur wife of Surjit Singh filed Crl.Writ Petition No.1774 of 1996 (Annexure P-6). Reply was filed by ASP, Police District Majitha, and the petitioner to the effect that on 7.5.1992, Village Bhorsi was not surrounded. In fact, on 8.5.1992, Surjit Singh was arrested in FIR Crl. Revision No. 1390 of 2009 3 No.64 dated 8.5.1992, while carrying a foreign made .30 bore mouser along with 7 live cartridges. Vide order dated 1.4.2003, CBI was directed to investigate and submit report. Copy of order dated 1.4.2003 is Annexure P-8. As per order of the Court, CBI registered FIR RC No.1(S)/2003/SIU- XV/CHG dated 27.5.2003. After completion of investigation, challan was presented in Court. Then application was moved by the petitioner to set aside the impugned order dated 4.3.2009 but the same was dismissed. Learned counsel for the petitioner argued that as per investigation by the CBI, there was joint operation by the police officials, 12th and 90th Battalions of CRPF and 6th Rashtriya Rifles of Indian Army and after search of Village Bhorsi, Surjit Singh along with Jatinder Singh and Paramjit Singh was apprehended for further interrogation. Statements of Paramjit Kaur, Jitender Singh, Paramjit Singh, Tirlok Singh, Mangal Singh, Baldev Singh, Surinder Singh and Sewa Singh were recorded, but no one stated a word that Surjit Singh was in the custody of the petitioner. In fact, arms and ammunition were recovered from Surjit Singh by the police party headed by SHO Udham Singh. FIR No.64 dated 8.5.1992 was recorded at 10.00 PM. Then Surjit Singh suffered disclosure statement and when the police party was going to effect recovery as per disclosure statement of Surjit Singh, then on the way, Surjit Singh requested police party to answer call of nature. Surjit Singh had gone inside the fields to answer call of nature. Then taking the benefit of darkness, Surjit Singh had fled away. FIR No.65 dated 8.5.1992 was registered at 11.40 PM. Surjit Singh was declared proclaimed offender as per order of the Court. No report by the CBI that Surjit Singh was in the custody of the petitioner. No clear cut report by the CBI that Surjit Singh was eliminated by the police party or by Crl. Revision No. 1390 of 2009 4 the CRPF or Army. No evidence on the file as to which of the officials of CRPF and Army were with the police party at the time of search of Village Bhorsi. Number of other employees of police department and para-military forces were present at the time of raid. At the time of search of Village Bhorsi by the police party with the help of para-military forces and Army, suspected persons including Surjit Singh were made to sit separately for further investigation. Regarding recovery of arms and ammunition from Surjit Singh by the police party headed by SHO Udham Singh, FIR No.64 dated 8.5.1992 was recorded. Petitioner was not with the police party headed by SHO Udham Singh at the time of recovery of arms and ammunition from Surjit Singh. Petitioner was not with the party headed by SHO Udham Singh when Surjit Singh was being taken to get arms and ammunition recovered in pursuance of his disclosure statement. Paramjit Kaur wife of Surjit Singh stated that Mangal Singh told her that at 6.30 PM on 7.5.1992, Surjit Singh was taken away by the police/army and on 9.5.1992, there was news in `Ajit, and `Jagbani' dated 9.5.1992 that Surjit Singh was arrested by the police of PS Jandiala for possessing mouser and 7 live cartridges, and she was informed by the police that Surjit Singh had escaped from police custody on 8.5.1992. Paramjit Kaur stated that she does not identify the police officials but she was informed by the villagers that Surjit Singh along with two other persons was taken into custody by the police officials. Argued that Jitender Singh was also taken into custody along with Surjit Singh. Jitender Singh stated before CBI that on 7.5.1992, police of PS Jandiala along with Army and CRPF had cordoned off Village Bhorsi. Petitioner was also with the police party. 5 persons including him were Crl. Revision No. 1390 of 2009 5 interrogated. Surjit Singh was seen in the police station and was severely beaten by the police. On 7.5.1992, petitioner was posted as DSP, Police Lines/Control Room, Police District Majitha. Paramjit Singh was also taken into custody by the police along with Surjit Singh but Paramjit Singh when deposed before the CBI, then did not name the petitioner. Tirlok Singh son of Tara Singh also appeared before the CBI but he did not name the petitioner. Mangal Singh, who was made to sit separately for interrogation by the combined forces, stated that Surjit Singh along with Jitender Singh and Paramjit Singh was also taken away by the police, but he did not name the petitioner. Statement of Baldev Singh was also recorded by the CBI. He is brother-in-law of Surjit Singh but he did not name the petitioner. Surinder Singh stated that Village Bhorsi was cordoned off by combined forces of police, CRPF and Army. Petitioner was also present but he did not state a word that Surjit Singh was taken into custody by the petitioner. Statement of Sewa Singh was also recorded by the CBI but he did not name the petitioner. Efforts were made to collect evidence as to which of the officials of CRPF and Army were assisting the police at the time of raid. In the absence of documentary proof, CBI was not in a position to report as to which of the officials of 12th and 90th Battalions of CRPF and 6th Rashtriya Rifles of Indian Army were assisting the police at the time of checking of Village Bhorsi. As per report by CBI, there was joint operation by the police, CRPF and Army officials. Some of the suspected persons including Surjit Singh were taken into custody for interrogation. That means, in the discharge of official duty, Surjit Singh was taken into custody for interrogation. In pursuance of disclosure statement suffered by Surjit Singh Crl. Revision No. 1390 of 2009 6 to the effect that arms and ammunition of Pipal Singh were kept concealed and he can get the same recovered, Surjit Singh was being taken to Mand area to effect recovery but on the way when he had gone to answer the call of nature, then by taking the benefit of darkness, he had escaped from police custody. At that time, petitioner was not with the police party headed by SHO Udham Singh. Letters were written by the CBI to obtain sanction from the competent authority but sanction was not accorded under Section 197 Cr.P.C. Department of Home Affairs and justice vide order dated 12.9.2008 had refused to accord sanction under Section 197 Cr.P.C. for prosecution of the petitioner. Record shows that two FIRs, i.e., FIR No.87 dated 20.4.1991 and FIR No.64 dated 8.5.1992 under the Arms Act were registered against Surjit Singh. Copy of order (Annexure P-27) vide which competent authority refused to accord sanction to prosecute the petitioner shows that without sanction, petitioner cannot be prosecuted. Application to drop proceedings in the absence of sanction from the Central Government under the Punjab Disturbed Areas (Amendment) Act, 1989, was wrongly rejected. As per report by the CBI, at the time of joint operation by the police with the help of CRPF and Army, petitioner was present in Village Bhorsi but Surjit Singh was not taken into custody by the petitioner. No recovery of arms and ammunition by the petitioner from Surjit Singh. Petitioner was not with the party. There was not an iota of evidence on file to connect the petitioner with the crime. If we presume that petitioner was with the party and Surjit Singh was being taken towards Mand area to effect recovery of arms and ammunition and Surjit Singh had escaped from police custody when had gone to answer the call of nature, even then in the absence of sanction by the Central Government under the Punjab Crl. Revision No. 1390 of 2009 7 Disturbed Areas (Amendment) Act, 1989, petitioner cannot be prosecuted. Learned counsel for the petitioner in support of his contentions relied upon (i) AIR 1972 SC 545, Century Spinning & Mfg. Co. Ltd. vs. State of Maharashtra, (ii) AIR 1979 SC 366, Union of India vs. Prafulla Kumar Samal, (iii) AIR 1990 SC 1962, Niranjan Singh Karam Singh Punjabi vs. Jitendra Bhimraj Bijja, (iv) AIR 1998 SC 3258, Suresh B. Kalani vs. State of Maharashtra, (v) (2002) 2 SCC 135, Dilawa Balu Kurane vs. State of Maharashtra, (vi) (2008) 2 SCC 561, Onkar Nath Mishra & others vs. State (NCT) Delhi and (vii) (2008)10 SCC 394, Yogesh @ Sachin Jagdish Joshi vs. State of Maharashtra. Learned counsel for the respondent argued that on 7.5.1992, there was joint operation by the police party with the help of two battalions of CRPF and one battalion of Army. Village Bhorsi was cordoned off. Surjit Singh, Jitender Singh and Paramjit Singh were taken into custody by the police party headed by the petitioner. Surjit Singh was tortured in Police Station, Jandiala, and later on, at Mal Mandi Interrogation Centre, Amritsar. After that, whereabouts of Surjit Singh were not known. Later on, FIR Nos.64 dated 8.5.1992 and 65 dated 8.5.1992 were registered to show that Surjit Singh has escaped from police custody when he was being taken towards Mand area for recovery of arms and ammunition. In fact, Surjit Singh was tortured by the police party including the petitioner. Police officials had the power to cordon off Village Bhorsi and check the villagers but petitioner had no power to torture Surjit Singh without any reason. Wife of Surjit Singh filed Crl.Writ Petition and investigation was entrusted to CBI. As per report of CBI, FIR was rightly registered. When petitioner was with the party at the time when Surjit Singh was tortured, then he was Crl. Revision No. 1390 of 2009 8 challaned. Application to discharge was rightly dismissed. When a prima facie case is made out, then Court has the power to frame charges. Court was not required to give reasoning while framing charges. When police party suspected some one carrying incriminating article, then police party has the power to interrogate him. In the present case, there is a possibility of elimination of Surjit Singh but one thing is clear that Surjit Singh was tortured by the police party headed by the petitioner. After charge, case is pending for prosecution evidence. Court is to opine as to whether petitioner was the member of the party, who had arrested Surjit Singh or petitioner was not with the party, who had interrogated Surjit Singh. Charges can be framed even on weak evidence without opining whether it would result in conviction or acquittal. When elimination in fake encounter, then sanction for prosecution under Section 197 Cr.P.C. is not required. Learned counsel for the respondent relied upon (i) 1997(4) RCR (Crl.) 683, Krishan Pal Singh Chauhan vs. State of Haryana, (ii) 2001(4) RCR (Crl.) 308, Balbir Singh vs. State of Punjab through CBI, (iii) 2000(1) RCR (Crl.) 407, Kanti Bhadra Shah vs. State of West Bengal, and (iv) 2008(1) RCR (Crl.) 336, Onkar Nath Mishra and others vs. State (NCT of Delhi) and another. According to the story, there was joint operation by the police party with the help of two battalions of CRPF and one battalion of Army and at the time of checking of village Bhorsi, Surjit Singh was taken into custody by the police party headed by the petitioner. Surjit Singh was tortured in different police stations and ultimately, he was shown to have escaped from police custody, whereas allegation of the petitioner is that he was not with the party headed by SHO Udham Singh, who had arrested Surjit Singh with arms and ammunition. Petitioner was not with the party Crl. Revision No. 1390 of 2009 9 when Surjit Singh was being taken towards Mand area for recovery of arms and ammunition. In the presence of petitioner, Surjit Singh was not interrogated in Police station, Jandiala, or Mal Mandi Interrogation Centre, Amritsar. Admittedly, Paramjit Kaur is the wife of Surjit Singh, who as per story had escaped from police custody on 8.5.1992 when he was being taken towards Mand area for recovery of arms and ammunition kept concealed by Pipal Singh. File shows that FIR No.64 (Annexure P-3) dated 8.5.1992 was registered against Surjit Singh, regarding recovery of arms and ammunition. Surjit Singh was interrogated by the police party headed by SHO Udham Singh. Surjit Singh suffered disclosure statement that he can get recovered arms and ammunition kept concealed by Pipal Singh. In pursuance of disclosure statement, he (Surjit Singh) was being taken towards Mand area for the recovery of arms and ammunition. On the way, Surjit Singh requested the party to answer the call of nature and had gone to the fields. Surjit Singh had escaped from police custody by taking the benefit of darkness. Till today, whereabouts of Surjit Singh are not known. No case of the prosecution that Surjit Singh was eliminated by the police party. Allegation of the prosecution is that Surjit Singh was tortured by the police party headed by the petitioner. Then different FIRs, i.e., FIR No.64 dated 8.5.1992 and FIR No.65 dated 8.5.1992 were registered to show that Surjit Singh had escaped from police custody when he was being taken towards Mand area for recovery of arms and ammunition. When police failed to trace Surjit Singh, then he was got declared proclaimed offender. Ultimately, Paramjit Kaur wife of Surjit Singh filed Crl.Writ Petition No.1774 of 1996. Investigation was transferred to CBI. After investigation, Crl. Revision No. 1390 of 2009 10 report was submitted by the CBI, then as per report, case was registered. Paramjit Kaur wife of Surjit Singh appeared before the CBI. Annexure P-10 is the copy of statement of Paramjit Kaur but she did not state a word that in her presence, Surjit Singh was taken into custody by the police or was interrogated. She simply stated that on 7.5.1992, there was joint operation by police, CRPF and Army. Her village was cordoned off. There was announcement from local Gurdwara and male members were directed to assemble at Mulk Shah Pir. Ladies were directed to remain inside the houses. Her house was searched. At about 6.30 PM, Mangal Singh came and from Mangal Singh she enquired about her husband Surjit Singh. Mangal Singh informed her that Surjit Singh was taken away by the police and Army along with Jitender Singh and Paramjit Singh. Surjit Singh was seen when he was being taken away in a police vehicle. She enquired from the police of PS, Jandiala as to why Surjit Singh was being taken. Then reply by the police was that Surjit Singh was being taken to Sarpanch of Village Bhorsi for clarification. On 8.5.1992, she did not hear anything about her husband. On 9.5.1992, there was a news in the news papers `Ajit' and `Jagbani'. She cannot recollect now that Surjit Singh was arrested by the police of PS, Jandiala, for possession of a mouser pistol and 7 live cartridges. She came to know from PS, Jandiala, that Surjit Singh escaped from police custody on 8.5.1992. Panchayat people informed her that Surjit Singh along with two other persons was taken away by SHO Udham Singh and other police officials including the petitioner. Jitender Singh was also taken into custody by the police party along with Surjit Singh. He appeared before CBI and copy of his statement is Annexure P-11. Jitender Singh stated that village Bhorsi was cordoned Crl. Revision No. 1390 of 2009 11 off by the police of PS, Jandiala, with the help of CRPF and Army. Male members above the age of 10 years were directed to assemble at a place known as Mulk Shah Pir. Ladies were directed to remain inside the houses. At Mulk Shah Pir, petitioner was seen sitting in a chair. SHO Udham Singh had checked their palms. He along with Surjit Singh and Paramjit Singh was directed to sit separately. He along with Paramjit Singh was taken away by the police party headed by SHO Udham Singh. Near drain, they were interrogated. They were repeatedly tortured by SHO Udham Singh and ASI Satwant Singh. At about 9.00 PM, Surjit Singh was seen in Police Station, Jandiala, and was taken inside the interrogation room. After interrogation, Surjit Singh was brought outside and was unconscious. After that, Paramjit Singh was interrogated. On the intervening night of 7/8.5.1992, he along with Paramjit Singh and Surjit Singh were brought to Mal Mandi Interrogation Centre, Amritsar, where they were interrogated. He had heard police officials by saying that Surjit Singh is being taken to hospital. Paramjit Singh was also taken into custody at the time of checking of Village Bhorsi by police party with the help of two battalions of CRPF and one battalion of Army. Annexure P-12 is the statement of Paramjit Singh. As per Annexure P-12, Paramjit Singh, Jitender Singh and Surjit Singh were interrogated in PS, Jandiala, and Mal Mandi Interrogation Centre, Amritsar. Police party headed by SHO Udham Singh had interrogated Surjit Singh, Jitender Singh and Paramjit Singh. Not a word in the statements of Paramjit Singh and Jitender Singh that at any stage, petitioner was present and had interrogated them or Surjit Singh. Baldev Singh appeared before CBI and stated that on 8.5.1992, Crl. Revision No. 1390 of 2009 12 her sister Paramjit Kaur came and told him that Surjit Singh was taken away by the police of PS, Jandiala. After that, they had gone to PS, Jandiala, at about 11.00 AM on 8.5.1992. Panchayat of Village Bhorsi had also gone to PS, Jandiala, for release of Surjit Singh, Jitender Singh and Paramjit Singh but they were not allowed to enter the police station. Only Sewa Singh had gone inside. After that, he contacted his cousin Bhupinder Singh, who was serving as Head Constable in the police department. On 9.5.1992 at about 4.00 PM, he along with Bhupinder Singh had gone to PS, Jandiala. Then they were informed that FIR was registered against Surjit Singh and he (Surjit Singh) has escaped from the custody of police. Surinder Singh, Tirlok Singh, Sewa Singh and Mangal Singh were also joined in the investigation by the CBI. Statements of above said persons are on the file but they did not state a word that Surjit Singh was taken into custody and was interrogated by the petitioner. After completion of investigation, challan was presented by the CBI and along with report, list of 13 witnesses was attached. Out of 13 witnesses, witnesses at Sr. Nos.9 to 13 are the police officials or CRPF and Army. Only 8 witnesses, namely, Paramjit Kaur, Jitender Singh, Paramjit Singh, Tirlok Singh, Mangal Singh, Baldev Singh, Surinder Singh and Sewa Singh, are private witnesses. Statements of above said 8 private witnesses are on the file but none of the private witnesses stated a word that Surjit Singh was taken into custody by the petitioner and after arrest, he was interrogated by the petitioner or at the time of interrogation by SHO Udham Singh or any other police official, petitioner was present. There was joint operation by police with the help of CRPF and Army. Only one line is in the statement of one witness that at Mulk Shah Pir, where male members of Village Bhorsi were Crl. Revision No. 1390 of 2009 13 directed to assemble, petitioner was seen sitting in a chair. On the other hand, copies of FIR No.64 (Annexure P{-3) and FIR No.65 (Annexure P-4) show that Surjit Singh was arrested by the police party headed by SHO Udham Singh, PS, Jandiala, after recovery of arms and ammunition. During interrogation, Surjit Singh suffered disclosure statement that arms and ammunition were kept concealed by Pipal Singh and he knew about the same and could get the same recovered. When police party as per disclosure statement was going towards Mand area for recovery of arms and ammunition, then on the way, Surjit Singh requested the party that he wants to answer the call of nature and was allowed. Surjit Singh had gone in the fields to answer the call of nature and by taking the benefit of darkness, he had escaped. Regarding recovery of arms and ammunition, there was a news in the news paper. Two battalions of CRPF and one battalion of Army were assisting the police party of PS, Jandiala, at the time of search of Village Bhorsi. But no oral or documentary proof on the file collected by the CBI as to which officials of CRPF and Army were assisting the police party at the time of search of Village bhorsi on 7.5.1992 when Surjit Singh was taken into custody by the police of PS, Jandiala. At the time of search of Village Bhorsi, petitioner was serving as DSP, Police Lines/Control Room, Police District Majitha. As per story, petitioner was present in Village Bhorsi at the time of joint operation by the police with the help of CRPF and Army. If as per story, Surjit Singh was taken into custody by the police party headed by SHO Udham