CRWP No. 883 of 2003 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRWP No. 883 of 2003 Date of decision: 06.05.2011 Kirpal Singh Randhawa and another ........ Petitioners Versus State of Punjab and others ........ Respondents CORAM: HON'BLE MR.JUSTICE JORA SINGH **** PRESENT: Mr. R.S. Bains, Advocate, for the petitioner. Mr. P.S. Sidhu, Additional Advocate General, Punjab, for respondent-State, 1 to 4. Mr. Vaneet Soni, Advocate, and Mr. Akshay Bhan, Advocate, for respondents No. 5 and 6. None for respondent No. 7. **** JORA SINGH, J. Sh. Kirpal Singh Randhawa and Sh. Bachan Singh, preferred this writ petition under Article 226 of the Constitution of India, for issuance of a writ in the nature of Habeas Corpus, directing respondents No. 5 to 7 to produce (i) Hira Singh S/o Maya Singh, aged about 15 years, resident of village Mahal, District Amritsar; (ii) Surjit Singh S/o Satnam Singh, aged about 15 years; (iii) Sonu son of Karma; (iv) Surjit Singh @ Bhallu S/o Bachan Singh, aged about 20 years; (v) CRWP No. 883 of 2003 -2- Amandeep Singh S/o Pargat Singh, aged about 17 years; (vi) Gurjit Singh S/o Bachan Singh, aged about 15 years; (vii) Mohan Lal son of Pheruman aged about 26 years and (viii) one more person aged about 17-18 years. That on 15.6.2003, four young men from village Mahal, District Amritsar, left from the village to visit the shrine of Mata Vaishnu Devi and they reached Jammu on 16.6.2003, where they were stated to be arrested by respondent No.7 and others. The custody of above said four persons with Jammu Police was confirmed when Jammu Police with respondent No. 7 had picked up four more persons. Police party lead by respondent No. 7 raided village Mahal at about 5.30 to 6.00 a.m. on 21.6.2003. Four persons arrested by the police were with the party and on 21.6.2003, Amandeep Singh S/o Pargat Singh, Gurjit Singh, son of Bachan Singh, Mohan Lal S/o Pheruman and one more person aged about 17-18 years, were picked up from Guru Ram Dass Sarai, Darbar Sahib Complex, District Amritsar. No information was furnished why young boys were taken into custody by the police. No memo of arrest was prepared. Grounds of arrest were also not prepared as to why young boys were taken into custody. Relations of the detenues namely, Pargat Singh, Puran Singh Sandhu, Surjivan Singh and Manjinder Singh, had gone to Police Station Gangyal, at 10.00 p.m. on 21.6.2003, Jammu and Kashmir and had personally met respondent No.7, who assured that all the boys are safe and advised them to stay in nearby Gurudwara and come in the morning. Next day at about 7.30 a.m. number of persons from village Mahal, again contacted respondent No.7 who acknowledged that all the deteneus are in custody and after Enquiry they are to be released. Relations of the CRWP No. 883 of 2003 -3- detenues were directed to come on 25.6.2003. On 25.6.2003, Pargat Singh father of Amandeep Singh, with letter of R.L. Bhatia, MP, had gone to Jammu and had met Mr. Saini, SP, Jammu, but Mr. Saini, SP, Jammu, abused everybody and declared that he was not going to release anybody and if they insisted to pursue the matter then they are also to be taken into custody. Out of fear relatives of the detenues and villagers came back from Jammu and Kashmir. Detenues were illegally detained and on 3.7.2003, dead body of Mohan Lal, arrived in the village brought by his father-in-law, who disclosed that he was detained for four days and respondent No. 7 had directed him to take dead body of Mohan Lal. After protest by the public, FIR No. 228 dated 4.7.2003, under Sections 302/344 IPC at Police Station Sadar, Amritsar. Post- mortem examination on the dead body of Mohan Lal, was got conducted. After the registration of FIR accused were not arrested and abducted young boys were not released. Representation was also sent to SSP, Amritsar, regarding illegal detention of Amandeep Singh. One of the detenu has already died in police custody and an attempt has been made to destroy the evidence. Remaining 7 detenues are being detained to force their families to withdraw the criminal case. Detenues are seen in the custody of Police Station, Gangyal, Jammu, by the relations of the detenues. Prayed that respondents No. 5 to 7 be directed to produce the detenues and in FIR No. 228 dated 4.7.2003 under Sections 302/344 IPC, after investigation final report in Court be presented expeditiously. State be directed to grant compensation to the legal heirs of the detenues @ ` 5000/- per day in the illegal detention and ` 10 lacs as compensation to the legal heirs of Mohan Lal, who was CRWP No. 883 of 2003 -4- murdered in the illegal custody. In pursuance to the notice respondents No. 1 to 4 filed reply in the shape of affidavit of A.A. Sidiqui, IPS, DGP, Punjab and the allegation of respondents No. 1 to 4 was that on 21.6.2003, respondent No.7, who was the SHO of Police Station Gangyal, District Jammu, along with police officials came to Police Post Mahal, for seeking police help for conducting raid at village Mahal in connection with the investigation of FIR No. 55 of 2003, under Sections 460/409 IPC, Police Station Gangyal, District Jammu. Police help was provided to respondent No. 7. DDR No. 22 dated 21.6.2003, was recorded in the roznamcha copy of which is Annexure R-I. Raid was conducted by respondent No. 7. Mohan Lal S/o Pheru resident of village Mahal, along with Amandeep Singh, were arrested. As per report by Constable Mangal Singh, on return to PP, DDR No. 23 dated 21.6.2003, was recorded copy of which is Annexure R-II. On 3.7.2003, dead body of Mohan Lal, was brought by his father-in-law at village Mahal. FIR No. 228 dated 4.7.2003 under Sections 302/344 IPC, was registered. Post mortem examination of the dead body of Mohan Lal was got conducted by the Board of Doctors. Videography was done at the time of postmortem examination and cassette was produced before the Chairman, Punjab State Human Rights Commission, Chandigarh. Special Investigation Team was constituted to investigate the matter and SSP, Jammu informed that Magisterial Enquiry was ordered into the cause of death of Mohan Lal. Copy of the order is Annexure R-III. District Magistrate, Amritsar, also wrote a letter to Home Secretary, Government of Punjab, to take up the matter with Jammu and Kashmir Government, for suitable action against the guilty police personnel. CRWP No. 883 of 2003 -5- Representation dated 21.6.2003, was received in the office regarding illegal detention of Amandeep Singh and Enquiry was marked to Inspector Baldev Singh. Representation was filed because Amandeep Singh, was arrested in FIR No. 55 under Section 460/409 IPC. Additional affidavit was filed by the then DGP, Punjab, Chandigarh, to the effect that Gurjit Singh and Amandeep Singh, were arrested in case FIR No. 97 of 2002 under Section 394 IPC. Respondents No. 5 and 6 filed separate reply to the effect that four persons namely Sonu, Hira Singh, Surjit Singh S/o Bachan Singh and Surjit Singh S/o Satnam Singh, residents of village Mahal, Amirtsar, were apprehended by the villagers of village Jaluchak and were handed over to the SHO of Police Station Gangyal, i.e. respondent No. 7 suspecting them to be the members of gang known as Kala Kachha gang. The abovesaid four persons were taken into custody under Section 54 Cr.P.C. DDR No. 27 dated 17.6.2003, was recorded but subsequently after questioning given benefit of Section 169 Cr.P.C. for want of sufficient evidence and to this effect DDR No. 14 dated 18.3.2006, was recorded. One of the arrested person namely Surjit Singh S/o Bachan Singh, had disclosed that there are four other persons namely Amandeep Singh, Gurjit Singh, Mohan Lal and Gopal Dass, who are involved in the crimes committed by Kala Kachha gang. As per information supplied by Surjit Singh @ Bhallu s/o Bachan Singh, matter was discussed with Senior Superintendent of Police, Jammu, who directed respondent No. 7 to proceed to Punjab to arrest these persons and after raid the abovesaid four persons were taken into custody by respondent in the presence of officials of Police Station Sadar and Police Post, Mahal, Amritsar. Amandeep Singh, Gurjit CRWP No. 883 of 2003 -6- Singh, Mohan Lal and Gopal Dass, were brought to Police Station Gangyal and after questioning, given the benefit of Section 169 Cr.P.C. for want of sufficient evidence but all the 8 boys were directed to remain present for further questioning,\ as the suspicion was grave against them for their involvement in the related crimes committed by Kala Kachha Gang in Jammu area. Mohan Lal was admitted in District Police Lines, Hospital for treatment alleged to be suffering with fever and dysentery. After death of Mohan Lal, post-mortem examination was got conducted. Death of Mohan Lal was in District Police Lines Hospital Jammu and to ensure fair play, judicial Enquiry was got conducted. Annexure R6-I is the copy of the Magisterial Order. As per Magisterial Enquiry Report, in case Mohan Lal died un-natural death then it was directed to register a case and get the matter investigated to ensure that guilty if any be brought to book and dealt with in accordance with law. Respondent No.7 filed separate reply with the allegation that FIR No. 136 of 2002 under Section 460 IPC was registered in Police Station Gangyal and on 18.6.2003 at about 0150 hours on 18.6.2003 on receipt of telephonic information regarding the presence of four persons in suspicious circumstances in the area of village Jaluchak, after recording DDR No. 26 dated 18.6.2003, he had gone to village Jaluchak. Yash Pal resident of village Jaluchak, handed over four persons to the police namely Sonu, Surjit Singh S/o Bachan Singh, Hira Singh and another Surjit Singh S/o Satnam Singh, residents of village Mahal, District Amritsar, Punjab. After return to the police station with the above said four suspects at 0315 hours on 18.6.2003, all the suspects were questioned in FIR No. 136 of 2002 under Sections 460 CRWP No. 883 of 2003 -7- IPC and were kept in custody under Section 54 Cr.P.C. but no sufficient evidence was available justifying their further custody. Benefit of Section 169 Cr.P.C. was given. DDR No. 14 dated 18.6.2003 at 1730 hours was recorded. During interrogation, abovesaid four persons had disclosed that there are four other persons from Punjab involved in various such crimes, then after consultation with the higher officials, the answering respondent was directed to proceed to Punjab vide movement order No. 19604-05/DPO dated 20.6.2003, copy of which is Annexure R7-1. After recording DDR No. 9 dated 20.6.2003, on reaching Amritsar, the answering respondent informed Police Station Sadar, Amritsar, and incharge of Police Station Mahal, who deputed some officials of the Police to accompany the answering respondent then he had apprehended four persons from village Mahal, identified by Surjit Singh S/o Bancha Singh and those four persons were Amandeep Singh, Gurjit Singh, Mohan Lal and Gopal Dass. Suspects were brought to Jammu but after questioning them there was no sufficient evidence available to connect the above said four persons with the crime as alleged in FIR No. 136 of 2002, benefit of Section 169 Cr.P.C. was given and the four persons were released. DDR No. 12 dated 22.6.2003 was recorded with direction to those persons to remain present in Jammu to enable themselves to attend the police station as and when required since the case being investigated was of special nature and linked with series of heinous crimes. On 1.7.2003, Mohan Lal (deceased) was directed to present himself in police station in connection with the investigation of FIR No. 136 of 2002. Mohan Lal, complained of being sick suffering with fever and dysentery. Mohal Lal, was referred to District Police Lines Hospital, Jammu and on 2.7.2003, CRWP No. 883 of 2003 -8- answering respondent had enquired about the condition of Mohan Lal in District Police Lines Hospital, Jammu and reply of the doctor was that he is improving but on 3.7.2003, on telephone by the District Police Lines Hospital, Jammu, answering respondent came to know that Mohan Lal, admitted on 1.7.2003, in hospital has expired. Dead body was shifted to Government Medical College, Jammu. Post-mortem examination was got conducted. FIR No. 228 dated 4.7.2003, under Sections 302/344 IPC was registered in Police Station Sadar, Amritsar. Police Station Sadar, Amritsar, has no jurisdiction to register the case. There was a Magisterial Enquiry. I have learned counsel for the petitioners, learned counsel for the Punjab State, learned counsel for the respondents No. 5 and 6 and have carefully gone through the file. Learned counsel for the petitioners argued on 15.6.2003, four young men namely Hira Singh, Surjit Singh S/o Bachan Singh, Sonu and Surjit Singh S/o Satnam Singh, from village Mahal, District Amritsar, had gone to visit the shrine of Mata Vaishnu Devi. On 16.6.2003, they were in Jammu but they were arrested by the police party headed by respondent No.7. Again on 21.6.2003, police party headed by respondent No. 7 came to District Amritsar. DDR No. 22 dated 21.6.2003, was recorded in Police Station Amritsar. Four persons namely Amandeep Singh, Gurjit Singh, Mohan Lal and Gopal Dass, were arrested in FIR No. 55 of 2003 under Sections 460/409 IPC at Police Station Gangyal, District Jammu. DDR No 22 dated 21.6.2003 was recorded at 6.45 p.m. copy of which is (Annexure R-I) and as per DDR No. 23 dated 21.6.2003 (copy of which is Annexure R-II), recorded at 7.45 a.m. after the arrest of Amandeep Singh, Gurjit Singh, Mohan CRWP No. 883 of 2003 -9- Lal and Gopal Dass, they were taken away to Jammu. According to reply by respondents No. 5 and 6, four persons namely, Hira Singh, Surjit Singh S/o Bachan Singh, Sonu and Surjit Singh S/o Satnam Singh, were apprehended by the police party headed respondent No.7. DDR No. 26 dated 18.6.2003, was recorded. As per DDR No. 26, a telephonic information was received regarding the presence of four persons in the area of village Jaluchak and as per DDR No. 27 police party had gone to village Jaluchak and had apprehended the abovesaid four persons but according to the reply after questioning benefit of Section 169 Cr.P.C. was given. Hira Singh, Surjit Singh S/o Bachan Singh, Sonu and Surjit Singh S/o Satnam Singh, were released. DDR No. 14 dated 18.6.2003, was recorded. Reply of respondents No. 5 to 7 further shows that after four persons were apprehended on 18.6.2003, then during investigation respondent No.7 came to know about the involvement of four other persons namely Amandeep Singh, Gurjit Singh, Mohan Lal and Gopal Dass and to apprehend them, police party headed by respondent No.7 had gone to Amritsar, by making entry in the Daily Diary Register i.e. DDR No. 9 dated 20.6.2003. After contacting the Police Station Sadar, Amritsar and Police Post Mahal, with officials of Punjab Police, party had raided village Mahal. Amandeep Singh, Gurjit Singh, Mohan Lal and Gopal Dass, were arrested in FIR No. 55 of 2003 and were brought to Police Station Gangyal, District Jammu. DDR No. 12 dated 22.6.2007, was recorded. Copies of all the DDRs are on the file. Allegation of respondent No. 7 is that after questioning Amandeep Singh, Gurjit Singh, Mohan Lal and Gopal Dass, then were given benefit of Section 169 Cr.P.C. with direction to remain in Jammu CRWP No. 883 of 2003 -10- for further questioning that means Mohan Lal deceased was in the custody of the police. As per respondent No.7 Mohan Lal was summoned to the police station on 1.7.2003 but regarding summoning of Mohan Lal to the police station no entry in the roznamcha. According to the story, Mohan Lal, complained of fever and dysentery then he was got admitted in the District Police Lines Hospital Jammu. While lying admitted in the hospital Mohan Lal had expired on 3.7.2003. Dead body was handed over to the father-in-law of Mohan Lal, after post- mortem examination but again no entry in the daily diary register that the dead body was handed over to father-in-law after post mortem examination. As per post-mortem report by the doctor of Government Medical College, Jammu, more than 16 injuries were noticed. Number of contusions were noticed but as per post-mortem report cause of death was due to blood infection i.e. due to septicemia and shock. If on 1.7.2003, more than 16 injuries were on the person of Mohan Lal, then entry in this regard should have been made in the roznamcha. No report by the doctor that at the time of admission in the hospital on 1.7.2003, more than 16 injuries were noticed on the person of Mohan Lal. Allegation of respondent No.7 was that Mohan Lal, complained of fever and dysentery but according to the Magisterial Enquiry death was due to septicemia and shock. Argued that Mohan Lal was arrested by the police party headed by respondent No.7 but after arrest he was not produced before the concerned Illaqa Magistrate. Nothing on the file that arrest memo was sent to his relations. According to the story, Mohan Lal deceased was the member of Kala Kachha gang. Heinous crimes were committed in Jammu. Earlier information with respondent No. 7 that CRWP No. 883 of 2003 -11- Hira Singh, Surjit Singh S/o Bachan Singh, Sonu and Surjit Singh S/o Satnam Singh are the members of Kala Kachha Gang but they were released by giving the benefit of Section 169 Cr.P.C. on the same day i.e. on 18.6.2003. Four persons were arrested from village Mahal, namely Amandeep Singh, Gurjit Singh, Mohan Lal and Gopal Dass on 21.6.2003 but they were not produced before the concerned Illaqa Magistrate. Allegation of respondent No.7 was that there was no sufficient evidence justifying their custody. Once four persons were arrested on 18.6.2003, on the allegation that they are the members of Kala Kachha gang then there was no reason to release them on the same day by not producing them before the Illaqa Magistrate. As per investigation, four persons namely Hira Singh, Surjit Singh S/o Bachan Singh, Sonu and Surjit Singh S/o Satnam Singh were arrested on 18.6.2003, four other persons namely Amandeep Singh, Gurjit Singh, Mohan Lal and Gopal Dass, were involved in commission of crimes in Jammu. Four persons including Mohan Lal (deceased) were arrested on 21.6.2003 but without producing them in Court they were released on the same day on the allegation that no sufficient evidence available justifying their further custody. After death dead body of Mohan Lal was handed over to his father-in-law who brought his dead body to Amritsar and at Amritsar, Board of Doctors had conducted post-mortem examination on the dead body of Mohan Lal. Copy of post-mortem report Annexure P-11 is on the file. 41 injuries were noticed. Death was due to haemorrhage and shock as a result of cumulative effect of injuries which were sufficient to cause death in ordinary course of nature. At the time of post-mortem examination at Amritsar, skiagram was prepared showing the receipt of injuries 41 injuries noticed on the CRWP No. 883 of 2003 -12- person of deceased shows that deceased was not in a position to walk. If Mohan Lal had 41 injuries on his person and had gone to police station on 1.7.2003 then very strange that he had complained of fever and dysentery and without making entry in the roznamcha regarding injuries, Mohan Lal was referred to District Police Lines Hospital, Jammu. When more than 16 or 17 injures on the person of Mohan Lal as per post-mortem reports then why Mohan Lal was shifted to District Police Lines Hospital, Jammu and why not to the Civil Hospital, Jammu, for check up by the expert. In fact four persons were arrested by the police party headed by respondent No.7 on 18.6.2003. Four other persons including the deceased were arrested on 21.6.2003. DDR No. 14 dated 18.6.2003, regarding release of four persons under Section 169 Cr.P.C. and regarding release of four other persons arrested on 21.6.2003 by giving benefit of Section 169 Cr.P.C. by recording DDR No. 12 dated 22.6.2003, were entered later on after death of Mohan Lal because roznamcha was with the Police Station Gangyal. After arrest of detenues, including the deceased intimation should have been given to the Illaqa Magistrate but no intimation till today. No explanation why after arrest detenues were not produced before the Illaqa Magistrate. FIR No. 228 dated 4.7.2003, was registered at Police Station Sadar, Amritsar, but no progress. Argued that deceased was married having three children. He was employee in the factory. Un-natural death in police custody so heirs of the deceased are entitled to compensation to the tune of ` 10 lacs. Learned State counsel for respondents No. 1 to 4 argued CRWP No. 883 of 2003 -13- that FIR No. 228 dated 4.7.2003, was registered but after investigation, cancellation report was submitted in Court and the same is pending. In case, Court is of the opinion that death of Mohan Lal was in the custody of police after the deceased was tortured then suitable action is to be taken against the guilty police officials. Learned counsel for respondents No. 5 and 6 argued that four persons were apprehended in view of telephonic message from the residents of village Jaluchak but after investigation when there was no evidence then they were released by giving the benefit of Section 169 Cr.P.C. DDR No. 14 dated 18.6.2003 was recorded. Four other persons including the deceased were arrested on 21.6.2003. While leaving the Police Station Gangyal, entry was made in the roznamcha. After arrest of four persons including the deceased entry was made in the roznamcha of Police Station Sadar, Amritsar. DDR Nos. 22 and 23 dated 21.6.2003, were recorded. Four persons including the deceased were brought to Police Station Gangyal by the police party headed by respondent No.7 but after investigation no sufficient evidence was available justifying their custody then benefit of Section 169 Cr.P.C. was extended to four persons on 22.6.2003, arrested from Amritsar, with a direction to remain in the area of Jammu, for further investigation of this case they are to be summoned in Police Station, Jammu. On 1.7.2003, Mohan Lal (deceased) was summoned to Police Station Jammu but he complained that he is suffering from fever and dysentery then he was referred to District Police Lines Hospital, Jammu. On 2.7.2003, Enquiry was made about the welfare of Mohan Lal and doctor reported that he is improving but on 3.7.2003, Mohan Lal lying admitted in the hospital had expired. Magisterial Enquiry was entrusted. According to the Enquiry CRWP No. 883 of 2003 -14- report death was due to septicemia and shock. Enquiry report Annexure R-I, was not challenged. If the petitioners or the legal heirs of the deceased are aggrieved with the Enquiry report then Enquiry report could easily be challenged before the concerned Court of Jammu and Kashmir. This Court has no jurisdiction to entertain the petition. FIR No. 228 dated 4.7.2003, was registered at Police Station Sadar, Amritsar, but after investigation allegations were not found to be correct one. Cancellation report was submitted. Petitioners or the LRs of the deceased are at liberty to move petition before the concerned Court or file private complaint before the Illaqa Magistrate of Police Station Gangyal, District Jammu. In support of his contention learned counsel for respondents No. 5 and 6 cited (1994) 4 Supreme Court Cases, 710, “Aligarh Muslim University and another Vs. Vinay Engineering Enterprises (P) Ltd. And another”, and (1994) 4 Supreme Court Cases 711, “Oil and Natural Gas Commission Vs. Utpal Kumar Basu and others”. Undisputedly, respondent No.7 was served but despite service he is not appearing. On some dates, Mr. M.A. Bhatt, Advocate and on some dates Mr. G.S. Ghuman, Advocate, appeared on behalf of respondent No. 7. Earlier presence of Mr.Vaneet Soni, Advocate, was marked on behalf of respondent No. 7 as per