CWP No. 14885 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 14885 of 2010 Date of Decision 22.12.2010 Court on its own motion Vs. State of Punjab and others CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. R.K.Malik, Sr. Advocate, as amicus curiae. Mr. Harpreet Singh, Advcoate for Mr.M.K. Singla, Advocate, for the complainant. Dr. Anmol Rattan Sidhu, Sr. Advocate Assistant Solicitor General of India with Mr. Dinesh Kumar, Advocate for CBI. Mr. Piyush Kant Jain, Addl. A.G., Punjab and Mr. Suvir Sehgal, Addl. A.G., Punjab. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. On 5.10.2010 we have directed the CBI to hold an enquiry after satisfying ourselves about the law on the issue and facts. The facts disclosed were that on 13.8.2010, a complaint was received, which was signed by all the members of Gram Panchayat of village Bhaini Sahib, (Tehsil Khanna, District Ludhiana) against Incharge, Anti Narcotic Cell, Khanna, and his accompanying officials for registering a false case namely the FIR No. 156 dated 28.7.2010 CWP No. 14885 of 2010 -2- involving Kuldip Singh son of Shri Darbara Singh and Dalbara Singh son of Shri Tarlok Singh, who are residents of village Bhaini Sahib. Consequently a prayer was made that because they have been involved in a false case, a thorough enquiry may be got conducted from the Central Bureau of Investigation (for brevity 'the CBI'). 2. Notice of motion was issued on 20.8.2010. The whole Gram Panchayat, in one voice had supported the fact that Kuldip Singh, Member Panchayat and his father Darbara Singh were falsely implicated. A true translated copy of the complaint filed by Paramjit Singh Sarpanch, Gram Panchayat, Bhaini Sahib (Ludhiana), which has been duly signed by all the members of the Gram Panchayat, was taken on record. Para Nos. 3, 4, 5 and 6 of the affidavit dated 30.8.2010 containing substantive allegations was also noticed by us which read as under:- “3. That said Kuldip Singh is the Chairman of Shaheed Bhagat Singh Welfare Club Shri Bhaini Sahib Ludhiana (Regd), presently is a member of Gram Panchayat and is the President of Co- operative Society of our village. 4. That both Kuldip Singh and Darbara Singh have good say and reputation in the village and in the adjoining areas, who always work for the welfare of the village. Both of them have no criminal background. 5. That above said Kuldip Singh is truthful and CWP No. 14885 of 2010 -3- honest man who always raised his voice against illegalities and cruelty. He is always ready and willing to help the poor and needy persons and he openly criticise the corruption prevailing in police administration and the executive. Due to which he always remained in the eyes of the police, who always looked for an occasion to implicate him in a false case to scuttle his voice so that they can stop him from doing so. 6. That on 28.7.2010 police officials of district police Khanna raided the house of Kuldip Singh at about 3-4 A.M. and remained there for two hours and nothing was recovered from his house. The police officials of Police Distt. Khanna took along with them saying that they shall leave them after one or two hours after conducting some inquiry. The police of District Police Khanna also took away one scorpio car, Indica car and Licensed gun of Kuldip Singh along with them. At the same time mother of Kuldip Singh came to the panchayat and informed that the police officials of District Police Khanna have taken away her son and her husband. I do not know what they will do. The panchayat went to the spot both of them were taken by the officials of CWP No. 14885 of 2010 -4- Police District Khanna and entire above-said articles were lying here and there. When the respectables and panchayat members of our village inquired, they came to know that both of them were taken to P.S.Samrala and a false case of 6 kg opium has been registered against them. When they said to the incharge that you was to leave them after 2 hours after investigation, but you have registered a false case against them. On this the incharge said you need not to worry, we will leave them after taking them to P.S.Mkachhiwara. When the respectable and the panchayat went to P.S.Machhiwara, they (officials of District Police, Khanna) did not leave them and when the respectable and panchayat member opposed this illegal act of the police, they openly declare that we have registered a case of 6 kg. opium against Kupdeep Singh and Dalara Singh. If, you don't shut up your voice, what we have done with Kuldeep Singh and Dalbara Singh, the same will be done with you all. 3. In response to notice of motion issued by this Court, reply was filed by Mr. Ravinder Loomba, PPS, Deputy Superintendent of Police, Samrala, Police District Khanna. It was disclosed that Sh. Kuldip Singh was also accused in case FIR No. 174 dated CWP No. 14885 of 2010 -5- 08.06.2006, registered under Sections 171, 420, 506, 148, 149 IPC read with Section 25/27/54/59 of the Arms Act. The allegations against Kuldip Singh are that on 08.06.2006, he along with 14 others co-accused had extorted money at gun-point from the innocent people in the cattle market held at Khanna. In respect of the instant case it has been asserted that the Punjab Police has investigated the FIR No. 156 dated 28.07.2010. A report has also been obtained from Forensic Science Laboratory indicating that the recovery made from the accused contained morphine to the extent of 2.19%. Challan has also been presented on 20.09.2010 and the next date of hearing is 12.10.2010. 4. Ordinarily, we would have refrained from interfering in the registration of a case against the accused persons. However, we felt persuaded keeping in view the compelling circumstances and allegations levelled in this case. The whole Gram Panchayat in one voice had disclosed its version that the police party descended on the village early morning at 3:30 / 4 O'Clock. It is not usual for the whole Gram Panchayat to support an accused because in these days there is acute party faction in villages. It appeared to us that their concern emanated from a common apprehension that any one of them may also meet the same fate, and accordingly they have been driven to filing of a complaint signed by everyone of them. There was another case which was pending consideration of this Court for 30.11.2010 being Ravinder Kumar v. State of Punjab (CWP No. 8617 of 2007). CWP No. 14885 of 2010 -6- 5. Then we ordered a CBI enquiry. We were of the view that once challan had been presented and on the side of defence whole Gram Panchayat was standing then at least a CBI enquiry may be necessary. The allegations against establishment had gained some credibility in such a situation. After all, personal liberty as granted by Article 21 of the Constitution is of paramount importance and the issue would acquire more significance than the right of the police to prosecute although that would be also important. The main object of putting the machinery of criminal justice delivery system is to segregate a criminal from the society so that law abiding citizens may live in peace and harmony. If that object is to be achieved by getting an enquiry conducted, then we feel that it must be done. Therefore, individual rights granted to citizens are more fundamental as against the right of the establishment to prosecute. Furthermore no delay is likely to occur as per the statement made by the counsel for CBI. 6. Furthermore for ordering enquiry we drew support from the parameter laid down by Hon'ble the Supreme Court in the case of State of West Bengal and others v. Committee for protection of Democratic Rights, West Bengal and others (2010) 3 SCC 571. In para 68 (vi) and (vii) their Lordships of Hon'ble the Supreme Court has laid down as under: “ (vi) If in terms of Entry 2 of List II of the Seventh Schedule on the one hand and Entry 2-A and Entry 80 of List I on the other, an investigation by another CWP No. 14885 of 2010 -7- agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, the Court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the statute; In our opinion, exercise of such power by the constitutional courts would not violate the doctrine of separation of powers. In fact, if in such a situation the Court fails to grant relief, it would be failing in its constitutional duty. (vii) When the Special Police Act itself provides that subject to the consent by the State, CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State Police, the Court can also exercise its constitutional power of judicial review and direct CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of their being any statutory provisions acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the Constitutional courts. Therefore, CWP No. 14885 of 2010 -8- exercise of powers of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure.” A perusal of the aforesaid observation clearly spells out that the power of the High Court to order an investigation by the CBI is not limited by the provisions of Section 6 of the Special Police Act, which provide for securing of consent from the State concerned. Such a restriction has not been extended on the power of the Court by their Lordships of Hon'ble the Supreme Court. 7. Accordingly, we concluded that this Court had jurisdiction to issue direction for investigation by the CBI, particularly in a case where the Fundamental Rights of citizen granted by Part III of the Constitution, especially under Article 21 of the Constitution are involved. 8. It is, however, necessary to point out that Hon'ble the Supreme Court despite conferring power on the Courts under Articles 226 and 32 of the Constitution, has also cautioned the courts for developing self-imposed limitations. It has been observed that no inflexible guidelines can be laid down, yet such power could be used in exceptional situation where it becomes necessary to provide credibility and instill confidence in investigation. The power can also be used for doing complete justice and enforcing Fundamental Rights. 9. Accordingly, we took the view that following observations CWP No. 14885 of 2010 -9- made by their Lordships of Hon'ble the Supreme Court would cover all the facts and circumstances of the present case warranting issuance of direction for investigation by the CBI, which reads thus: “ The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary powers must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigation or where such an incident may have national and international ramification or where such an order may be necessary for doing complete justice and enforcing the fundamental rights.” (emphasis added) 10. In view of the aforesaid, we directed the CBI through its counsel Mr. S.S.Sandhu to hold an enquiry with regard to veracity of the version given by the Punjab Police in case FIR No. 156 dated CWP No. 14885 of 2010 -10- 28.07.2010 and the version given by the Gram Panchayat in its complaint. 11. We also noticed the contention of Mr. Singla that the use of Electronic gadgets could be made to find out the location where the Police or the accused at a particular point of time were present. We had observed that the CBI might use any such gadget in order to establish the veracity of the allegations made by the Police. 12. Mr. S.S. Sandhu, learned counsel for the CBI had stated that the report would be submitted to this Court on or before 30.10.2010. The matter was ordered to be listed for hearing on 02.11.2010. A complete photocopy of the file along with the challan was furnished to Mr. Sandhu for onwards transmission to the concerned officer. In the meanwhile the Trial Court was directed to defer the hearing beyond 2.11.2010. The repot be submitted in a sealed cover on the date fixed. 13. In pursuance of the aforesaid direction issued by this Court, the matter came up for consideration on 02.11.2010, when a status report of the enquiry was placed before us wherein request was made for some more time. Accordingly, we adjourned the hearing for today i.e. 22.12.2010. Today, a detailed report, after holding of a comprehensive enquiry, has been filed by the CBI in which it is stated that neither the Sarpanch nor any other signatory of the alleged complaint has signed, which was eventually filed in this Court. Shri Paramjit Singh, Sarpanch, Gram Panchayat, Bhaini Sahib has categorically stated that no complaint/ affidavit was filed CWP No. 14885 of 2010 -11- by him before this Hon'ble Court. They revealed that their signatures were obtained by Smt Karamjit Kaur, w/o Kuldeep Singh on the false pretext of making request to SSP Khanna seeking release of her father-in-law Shri Dalbara Singh. The CBI report concludes that a false petition was filed before this Court to mislead and to obtain order/initiate action against police, which was performing its lawful duties. In the end, the CBI has sought permission for initiation of proceedings under Section 182 IPC against the signatories of the petition and Smt Karamjit Kaur w/o Kuldeep Singh. 14. We have heard learned Amicus Curiae, learned Assistant Solicitor General as well as learned State counsel. After the CBI has submitted its report authenticating action of the police, we are not inclined to issue any further direction in this regard. 15. One issue which has been brought to our pointed attention is the alleged conduct of Smt. Karamjit Kaur w/o Kuldeep Singh accused alongwith other signatories on the affidavit. The question is whether to order their prosecution under Section 182 of IPC. We have noticed that trial in the case FIR No. 156 dated 28.07.2010 is in progress. Any order for initiation of proceedings under Section 182 IPC may not be conducive. Therefore, we are not inclined to grant permission to CBI to launch proceedings against the complainants. However, they cannot be spared. All of them are warned to be careful in future. The complainant Karamjit Kaur w/o Kuldeep Singh shall pay a fine of ` 10,000/- to CBI. All other CWP No. 14885 of 2010 -12- signatories shall also pay a fine of ` 1000/- each to the State of Punjab. The fine shall be paid within 60 days from today. 16. Copy of this order be sent to the Computer Branch to feed a specific note in the computer that if any such misconduct is committed by any of the complainants again then file of this case be attached with any such case, if it arises in future. 17. The report of CBI be re-sealed and be handed over to its counsel. It is needless to add that the trial court shall now proceed with the trial initiated against the accused persons in accordance with the law. We make it further clear that any observation made in the preceding para shall not be construed as an expression of opinio on the merit of the controversy during trial. Learned trial Court shall proceed with the matter without being influenced by this order. 18. Before we part with the judgment we would appreciate the able assistance rendered by Shri R.K. Malik, learned Amicus Curiae. 19. The petition stands disposed of and the public interest litigation is closed. (M.M. KUMAR) JUDGE (RITU BAHRI) JUDGE December 22, 2010 Atul