CRM No. 843 of 2010 in/and CRWP No. 1340 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM No. 843 of 2010 in/and CRWP No. 1340 of 2010 (O&M) Date of decision: 30.9.2010 Kulwinder Kaur ........ Petitioner Versus State of Punjab and others ........ Respondents CORAM: HON'BLE MR.JUSTICE JORA SINGH Present: Mr. B.S. Sewak, Advocate for the petitioner. Mr. Arshvinder Singh, Deputy Advocate General, Punjab. JORA SINGH, J. The present Criminal Writ Petition was preferred by Kulwinder Kaur wife of Gurmail Singh under Article 226/227 of the Constitution of India, for issuance of a writ in the nature of Habeas Corpus, directing the respondents No.3 to 6 to produce the detenu namely Gurmail Singh who is in their illegal custody with further request to appoint warrant officer to search the premises of respondents No.3 to 6. The brief facts of the case are that police officials of Police Station Khanna, raided the house of the detenu at 1.00 a.m. on 17.7.2010. Identity was not disclosed by the police officials but they simply stated that they are from Khanna Police. Gurmail Singh was forcibly picked up by the police party. On hearing noise Sarpanch came at the spot but the policemen had left hurriedly in their vehicles without number plates. Resolution was passed by the Gram Panchayat. Police CRM No. 843 of 2010 in/and CRWP No. 1340 of 2010 (O&M) -2- officials had used very foul language and threatened the family members by saying that Gurmail Singh is a terrorist. That action of respondents No.3 to 6 is against Article 21 and Article 14 of the Constitution of India. That Gurmail Singh is also mentally unsound due to head injury. Requested to appoint warrant officer for the release of detenu, namely, Gurmail Singh. Notice was issued to the respondents. Respondents filed reply in the shape of affidavit of Ravinder Loomba, Deputy Superintendent of Police, Samrala, Police District Khanna and contest the petition inter-alia on the ground that warrant officer had raided the Police Station but Gurmail Singh was not found in illegal custody. Gurmail Singh was arrested only on 23.7.2010, in case FIR No. 154 dated 23.7.2010 registered under Sections 4/5 Explosives Substance Act, P.S. Machhiwara. Earlier FIR No. 194 dated 16.7.2010, Police Station City, Khanna, under Sections 3, 4 and 5 Explosives Act and Sections 25/54/59 of the Arms Act was registered against Gurmail Singh. Warrants of arrest of Gurmail Singh were obtained by the concerned Officer on 21.7.2010. There was no question to keep Gurmail Singh in illegal custody. By filing writ petition sole purpose is to create defence. Vide order dated 20.7.2010, passed by this Court warrant officer was appointed to see as to whether detenu Grumail Singh is in illegal custody of respondents No.4 to 6 or not. Report of the warrant officer is on the file and as per report on search of Police Station City, Khanna, Police Station CIA Staff Khanna and Police Station Sadar, Khanna, Gurmail Singh was not found in illegal custody of the police. After reply filed by the respondents, CRM No. 843 of 2010 CRM No. 843 of 2010 in/and CRWP No. 1340 of 2010 (O&M) -3- was filed by the petitioner seeking judicial enquiry into illegal detention of Gurmail Singh and thereafter involving him in case FIR No. 154 dated 23.7.2010, registered under Sections 4/5 of the Explosives Substances Act, at Police Station Machhiwara, on the allegation that Gurmail Singh was taken into custody by the police at about 1.00 a.m. on 17.7.2010 and on 23.7.2010, Gurmail Singh was involved in a false case in FIR No. 154 dated 23.7.2010, registered under Sections 4/5 of the Explosives Substances Act, at Police Station Machhiwara, Police District Khanna. Reply to the CRM No. 843 of 2010, was filed by the State. I have heard learned counsel for the petitioner, State counsel and carefully gone through the record. Learned counsel for the petitioner argued that house of Gurmail Singh was raided by the police officials at about 1.00 a.m. on 17.7.2010. Gurmail Singh was taken by the police and was in illegal custody of the police officials. On 19.7.2010 writ petition was filed. Warrant Officer was appointed. Ultimately on 23.7.2010 Gurmail Singh was implicated in FIR No. 154 dated 23.7.2010, registered under Sections 4/5 of the Explosives Substances Act, at Police Station Machhiwara, Police District Khanna. Earlier in FIR No. 194 dated 16.7.2010, Police Station City, Khanna, under Sections 3, 4 and 5 Explosives Act and Sections 25/54/59 of the Arms Act, Gurmail Singh was not named. After illegal detention by the police, resolution was passed by the Gram Panchayat of village Buta Singh Wala (Ramgarh). Annexure P-2 is the copy of the resolution. Friends Welfare Youth Club also passed a resolution copy of which is Annexure P-3. Different Panchayats passed resolution copy of which is Annexure P-4. Gurmail Singh when produced in Court, then filed his affidavit dated 6.9.2010. Affidavit is to the effect that he was taken away by the Punjab Police on CRM No. 843 of 2010 in/and CRWP No. 1340 of 2010 (O&M) -4- 17.7.2010 at about 1.00 a.m. . Police party was in civil dress and vehicles were without number plates. Police party used very foul language and threatened the family members by saying that he (Gurmail Singh) is a terrorist. Grumail Singh was shifted from one police station to other. During illegal detention, he was tortured. Signatures of Gurmail Singh were obtained on blank papers. Requested that judicial enquiry be marked to any retired Judge of the Hon'ble high court or any other Judicial Officer. Learned State counsel argued that FIR No. 194 dated 16.7.2010, was registered but in this FIR Gurmail Singh was found innocent. FIR No. 154 dated 23.7.2010, was rightly registered against Gurmail Singh and in that FIR Gurmail Singh is in custody. Investigation is going on. Prosecution is yet to present the challan. To save Gurmail Singh, writ petition was filed simply to create defence. In case Gurmail Singh was taken away by the police on 17.7.2010 at 1.00 a.m. then opportunity would be given to Gurmail Singh to lead defence in FIR No. 154 dated 23.7.2010. Three different police stations were raided by the warrant officer but Gurmail Singh was not found in the custody of the police. Co-accused of Gurmail Singh in FIR No. 154 is absconding. Recovery is of 250 grams of RDX. Court is yet to see whether case is genuine one or not. If story of the prosecution was found to be false one then Gurmail is to be acquitted in FIR No. 154. Admittedly, FIR No. 194 dated 16.7.2010, was registered against Harminder Singh, Manjinder Singh, Jaswinder Singh and Gurjant Singh but in this FIR Gurmail Singh was not named. As per submission of learned State counsel Gurmail Singh was found innocent and is not going to be challaned. Allegation of the petitioner is that Gurmail Singh was taken CRM No. 843 of 2010 in/and CRWP No. 1340 of 2010 (O&M) -5- away by the police forcibly on 17.7.2010 at about 1.00 a.m. and later on FIR No. 154 dated 23.7.2010, was registered whereas allegation of the State is the Gurmail Singh was not taken away by the police on 17.7.2010, in fact Gurmail Singh was arrested on 23.7.2010. 250 grams of RDX was recovered from him. Co-accused of Gurmail Singh is absconding in FIR No. 154 dated 23.7.2010. In FIR No. 154 investigation is going on and after completion of investigation prosecution is to present the challan. After the presentation of challan, Court is to see whether the story is genuine one or not. Whether RDX was recovered from the possession of Gurmail Singh or not. In support of CRM No. 843 of 2010 petitioner has produced the resolutions of Gram Panchayat Buta Singh Wala Annexure P-2 dated 18.7.2010, Annexure P-3 dated 25.7.2010, passed by Friends Welfare Youth Club and Annexure P-4 passed by the Gram Panchayats of 16 villages but court is yet to see whether resolutions Annexures P-2 to P4 were rightly passed or not and what is their effect on the merits of the case. No case of the petitioner that Member Panchayats of different villages or members of Friends Welfare Youth Club were present with Gurmail Singh, when he was taken away by the police. According to the story, on hearing raula only the Sarpanch came but police officials hurriedly had left the house of Gurmail Singh in different vehicles without number plates. No affidavit of the Sarpanch that he had seen the police officials while taking away Gurmail Singh on 17.7.2010 at 1.00 a.m. After investigation prosecution is to present challan in FIR No. 154 dated 23.7.2010. Evidence is to be lead by the prosecution after that opportunity is to be given the accused to lead defence. After evidence Court is to opine whether recovery of RDX is genuine one or not. In FIR No. 154 Gurmail Singh is to lead defence as to whether CRM No. 843 of 2010 in/and CRWP No. 1340 of 2010 (O&M) -6- Gram Panchayat Buta Singh Wala, had passed resolution Annexure P-2 dated 18.7.2010 and Friends Welfare Youth Club passed resolution Annexure P-3 dated 25.7.2010. Again evidence is to be lead as to whether 16 Panchayats of different villages had passed resolution Annexure P-4 or not. While disposing of the writ petition without evidence Court cannot opine that resolutions Annexures P-2 to P-4 were rightly passed. Suppose enquiry is marked to any retired High Court Judge or any other Judicial Officer and report is in favour of the accused and in FIR No.154 dated 23.7.2010 there is a conviction, whether with the enquiry report favourable to Gurmail Singh, FIR No. 154 dated 23.7.2010 is to be cancelled. If enquiry report is in favour of Gurmail Singh and in FIR No. 154 dated 23.7.2010, prosecution story is accepted and accused is convicted and sentenced then there would be two contradictory findings then which finding is to be accepted whether the enquiry report is to be accepted or judgment of the Court is to be accepted. Rightly or wrongly FIR No. 154 dated 23.7.2010, was registered against Gurmail Singh on the allegation that 250 grams of RDX was recovered from the possession of Gurmail Singh. In this FIR co-accused of Gurmail Singh is absconding. After evidence of the prosecution Gurmail is to get opportunity to lead defence. In defence he can produce Annexures P-2 to P-4. After the production of Annexures P-2 to P-4 in defence, Court is to see whether prosecution story inspires confidence or not. Whether recovery of RDX is genuine one or not. Whether defence version seems to be probable. In case defence version is found to be probable and prosecution story is found to be not genuine one then ultimately Gurmail Singh is to be acquitted. At this stage, as per statement of learned State counsel CRM No. 843 of 2010 in/and CRWP No. 1340 of 2010 (O&M) -7- Gurmail Singh was found innocent in FIR No. 194 dated 16.7.2010 but after the presentation of challan and after some evidence by the prosecution, there is a possibility to move an application under Section 319 Cr.P.C. to summon Gurmail Singh. After evidence Court is to return the finding as to whether prosecution story is correct one or not. Whether any incriminating article was recovered from Gurmail Singh or not. In case Gurmail Singh is of the view that he is innocent in FIR No. 154 dated 23.7.2010, then in this FIR he can move an application before higher authorities for re-investigation of the case but till today no complaint to any authority for re-investigation. In the light of above discussion, I am of the opinion that ground for judicial inquiry is made out. When Gurmail Singh was not found in illegal custody of police then CRM No. 843 of 2010 and CRWP No. 1340 of 2010, without merits are dismissed. September 30, 2010 ( JORA SINGH ) rishu JUDGE