C.M. NO.20940 OF 2007 & :{ 1 }: CIVIL WRIT PETITION NO.14941 OF 1994 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: APRIL 01, 2008 Satwant Singh Manak .....Petitioner VERSUS The State of Punjab and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. R. S. Bains, Advocate, for the petitioner. Mr. G. S. Attariwala, Addl.A.G., Punjab, for the State. Mr. Kanwaljit Singh, Sr.Advocate with Mr. Harmanjit Singh, Advocate, Amicus-curiae. Mr. H. S. Riar, Sr.Advocate with Mr.G.H.S.Dhillon, Advocate, for respondent Nos.3 to 10, 13 to 15 and 17. Mr. Puneet Bali, Advocate, for respondent No.11. **** RANJIT SINGH, J. The effect of bad times in the State of Punjab continues to have it's hang over even though the situation may have improved. The petitioner, a Constable in Punjab Police, claiming himself to be C.M. NO.20940 OF 2007 & :{ 2 }: CIVIL WRIT PETITION NO.14941 OF 1994 an eye witness to fake encounters, has filed this writ petition for a direction to transfer investigation of these cases to some independent agency like C.B.I. to ensure fair and proper investigation into such false encounters, which otherwise are nothing but cold blooded murders committed by the police and passed of as encounters. The writ petition is pending since 1994. When initially filed, it faced a first hurdle at the very thresh-hold. The Court required the counsel to satisfy it that the petitioner was competent to file the present petition in Public Interest, seeking registration of criminal cases against police officers. Through out it's journey, the petition has faced number of hurdles at different stages subsequently. Initially, this petition was filed through Mr.M.S.Rana, Advocate of this Court. Subsequently, Mr.D.S.Rajput, Advocate, appeared to make submissions. The writ petition was ultimately ordered to be admitted on 15.9.1995. In view of the reply filed, which revealed that some of the persons named by the petitioner indeed had been shown as killed in encounters, the Court obviously would have felt the need for some proper investigation to really go into the allegations made in the petition that these were the fake encounters and, thus, cold blooded murders. No directions, however, were given for fixing the case for hearing. A Civil Miscellaneous Application bearing No.26880 of 2002 was then filed for fixing some actual date in this case, in which notice to the Advocate General was issued on 20.12.2002. None C.M. NO.20940 OF 2007 & :{ 3 }: CIVIL WRIT PETITION NO.14941 OF 1994 appeared to represent the petitioner on the next date fixed i.e. 11.2.2002 and the application was dismissed for non-prosecution. Despite that the main writ petition was taken up for hearing on 14.1.2003 and was adjourned to 11.3.2003. The writ petition was adjourned as no one appeared on behalf of the petitioner on these dates. Another application No.23827 of 2003 was filed by the counsel representing the petitioner for withdrawing the writ petition. This Court, however, ordered that the application be taken up with the main case as the controversy raised in the writ petition was in larger public interest and prayer made for withdrawing the writ petition was ordered to be considered at the stage of final arguments. On 15.1.2004, another interesting development took place, when the petitioner himself appeared before the Court and stated that he did not wish to withdraw this petition, though the application on his behalf had been moved by Advocate, Mr.D.S.Rajput. This Court noticed the contention of the petitioner where he disclosed that there was and is pressure on him to withdraw this petition. The petitioner further requested that the case be handed over to C.B.I. for investigation. Noticing this alarming situation, this Court took another significant step and appointed Mr.Kanwaljit Singh, Advocate of this Court as Amicus to assist this Court. By noticing that the application for withdrawal moved by the Advocate representing the petitioner was kept pending, as the controversy raised in the writ petition was found to be in larger public interest, the case was ordered to be taken up in motion hearing. C.M. NO.20940 OF 2007 & :{ 4 }: CIVIL WRIT PETITION NO.14941 OF 1994 Though the case was adjourned to 5.2.2004 but it came up for hearing on 21.1.2005. While adjourning the case to 7.2.2005, the office was directed to get the date noted from the counsel for the petitioner, who was not present before the Court on 21.1.2005. The case thereafter was never put up for hearing before the Court till another application No.20940 of 2007 is filed on behalf of the petitioner through Mr.R.S.Bains, Advocate of this Court. Notice of the application was issued and Registry was directed to explain as to why this Case was not listed for hearing after the year 2005. An explanation was offered by the Registry, which was considered by the Court on 25.3.2008. The Court did not prima-facie feel satisfied with the reasons disclosed by the Registry for not putting up the case for hearing for almost three years and has separately directed enquiry to be held in the matter by Registrar (General). He has been directed to submit a report in this regard separately. The main writ petition, however, was taken up for hearing on 26.3.2008. On the request of State counsel it was adjourned to 27.3.2008, as the counsel representing the State wanted to seek instructions if the State would be averse in any manner and would oppose the request made in the petition. The State has seriously opposed the prayer made in the petition for investigation by C.B.I. That is how the writ petition has been finally heard on 1.4.2008. The journey of this litigation ever since it was filed in this Court would in itself tell a story and apparently would show that how more than one attempt was made to scuttle the order in this case one way or the other. The counsel who represented the petitioner made C.M. NO.20940 OF 2007 & :{ 5 }: CIVIL WRIT PETITION NO.14941 OF 1994 an endevour to withdraw the writ petition. But for the concern of this Court to consider the issues involved to be in the larger public interest, the demand for fair and independent investigation would have come to an abrupt end. The petitioner appeared in person to state about the pressure on him to withdraw this writ petition. This Court, then took another significant step to have an assistance of Amicus-curiae. Apparently, having failed in attempt to stall any order in the writ petition, the things appear to have been managed in the office and the case was not put up for hearing for over three years. The explanation being offered by the Registry in this regard is being dealt with. The entire issue is a cause of concern for a society which is governed by a rule of law and Constitution. The case perhaps may not have come up for hearing but for another application moved on behalf of the petitioner by the Advocate of this Court. Today, he alongwith the Amicus appointed by this Court, have rendered valuable assistance to the Court in disposing of this writ petition pending since 1994. They would deserve compliments and appreciation. The stand of the State continues to be to stone wall any attempt to have a fair and proper investigation by an independent agency. This can be reflected from the submissions made by the counsel representing the State. State counsel would first submit that the case can not be transferred for investigation without the consent of State Government, though he did not seriously contest that there may be a need for investigation. He accordingly contends that State is prepared to get the cases investigated by any senior officer of the C.M. NO.20940 OF 2007 & :{ 6 }: CIVIL WRIT PETITION NO.14941 OF 1994 State police but opposed the prayer made in the writ petition for transferring investigation to the Central Bureau of Investigation. This stand is in response to the prayer made by the State counsel to have instructions if the State Government would be opposed or averse in transferring the investigation in these cases to C.B.I. In addition, the State counsel submits that the Court can constitute any special investigation team to investigate the case but vehemently opposes the prayer made in the petition for investigation by independent agency like Central Bureau of Investigation. The counsel representing the private respondents ofcourse denied the allegations and raised a plea of locus on the part of the petitioner to file and maintain this writ petition. Mr.H.S.Riar, representing most of private respondents, was rather vehement in his approach to say that a person who himself is a dismissed employee, can not be taken seriously for passing an order against an officer who had perhaps taken action against him, leading to his dismissal. A plea of disgruntled employee, which the petitioner is stated to be, should not be heard by the Court, is the loud prayer made by the counsel for the private respondents. He would further emphasize that there is nothing which would call for investigation in these cases and as such, prays that writ petition be dismissed. At this stage, it may be noticed that even the State has not taken up this stand that the case would not need any investigation and it had only opposed the prayer for investigation by agency like C.B.I. When it is so observed by the Court, the State counsel again promptly stood up to say that there was nothing which C.M. NO.20940 OF 2007 & :{ 7 }: CIVIL WRIT PETITION NO.14941 OF 1994 would need any investigation. He was then reminded of his earlier stand as noted above and taken note of by the Court. Still, the State counsel started making submissions on merits to urge that there was no need of any investigation in the cases. The counsel was then apprised that the State then would perhaps invite the views of the Court on merits of the case whereas Court otherwise would only see if there is any need of fair and independent investigation by any agency other than Punjab Police. The attention of the counsel was then drawn to the settled proposition of law that it is not for the Court to go into the veracity of the allegations made and need was only to determine if there has been any fair and proper investigation into the cases or if there would be any need of investigation by independent agency. The counsel then apparently relented. Somewhat similar situation ofcourse has arisen before the Hon'ble Supreme Court in a case reported as R.S.Sodhi Vs. State of U.P. and others,, AIR 1994 Supreme Court 38. This was a case where 10 persons were reportedly killed in what were described as encounters between Punjab militants and local police. The investigation in regard to the incident was handed over to an officer of Inspector General level. Subsequently, one Member Commission of Enquiry headed by sitting Judge of Allahabahad High Court Judge was appointed to enquire into the matter. The High Court of Uttar Pradesh, however, later granted stay restraining the Commission from functioning. In this background, the Hon'ble Supreme Court observed that need for an independent investigation can hardly be disputed when 10 lives were lost in three incidents. Noticing that the C.M. NO.20940 OF 2007 & :{ 8 }: CIVIL WRIT PETITION NO.14941 OF 1994 local police was involved in the said encounters, a request was made that an independent agency may be asked/requested to look into the matter in accordance with the Code of Criminal Procedure with a view to bring the offenders, if any, to book. The stand of the State of Uttar Pradesh in this case was almost identical to the one taken by the State Government of Punjab in the present case before this Court. Rather, it was pointed out before the Hon'ble Supreme Court that the State Government of Uttar Pradesh had taken the step for purpose and independent enquiry by appointing Commission headed by a sitting High Court Judge to probe the incident and to arrive at the truth and hence, there was no need for directing the C.B.I. to investigate the matter. The Hon'ble Supreme Court in this case very aptly observed that whether the loss of lives was on account of a genuine or fake encounters is a matter which has to be enquired into and investigated closely. The Court, however, refrained from making any observation in this behalf as can be seen from the following:- “We, however, refrain from making any observation in that behalf; we should, therefore, not be understood even remotely to be ex pressing any view thereon one way or the other. We have perused the events that have taken place since the incidents but we are refraining from entering upon the details thereof lest it may prejudice any party but we think that since the accusations are directed against the local police personnel it would be desirable to entrust the investigation to an independent agency like the Central Bureau of Investigation so that all concerned C.M. NO.20940 OF 2007 & :{ 9 }: CIVIL WRIT PETITION NO.14941 OF 1994 including the relatives of the deceased may feel assured that an independent agency is looking into the matter and that would lend the final outcome of the investigation credibility. However, faithfully the local police may carry out the investigation, the same will lack credibility since the allegations are against them. It is only with that in mind that we having thought it both advisable and desirable as well as in the interest of justice entrust the investigation to the Central Bureau of Investigation forthwith and we so hope that it would complete the investigation at an early date so that those involved in the occurrences one way or the other may be brought to book.” Allegations in the present case are also against the police and the police officials of Punjab. Some of the respondents are holding high position in the police department and even still are serving as police officers. The deaths in all the 10 cases listed in the writ petition are not denied. In some of the cases, the version is that indeed an encounter had taken place between the police and the terrorists, leading to death of the persons named in the writ petition. Some of the persons who had so died were shown to be in police custody and were statedly being moved during the course of investigations, when the encounters are shown to have taken place. This had been followed as a usual and routine practice by the Punjab Police either to show that a terrorist while being carried from one place to another had escaped or had died in an encounter while the C.M. NO.20940 OF 2007 & :{ 10 }: CIVIL WRIT PETITION NO.14941 OF 1994 police party was taking a particular person and is ambushed by a terrorist outfit. The strange phenomena as would be noticeable in all these cases would be that none of the police officials would even receive a scratch while bullets are fired leading to deaths of some terrorists. Is it normally possible? I say nothing in this regard. The petitioner claims himself to be an eye witness to a police torture and ultimate death which is shown to be an encounter, which according to the petitioner, were all fake. As observed by the Hon'ble Supreme Court, it is not very appropriate for this Court to give any opinion on the merits of the controversy. Mr.R.S.Bains and Mr.Kanwaljit Singh, counsel representing the petitioner and Amicus- curiae respectively, have made some reference to the reply filed on record and the post-mortem reports in some of the cases, which have been placed alongwith the reply filed by the Senior Superintendent of Police, Faridkot, on behalf of respondent Nos.1 to 15. Mr.Bains has drawn my attention to these post mortem reports with special emphasis on the finding in regard to the nature of injuries, the part of body on which these were caused, “margins being inverted and blackened”. This, according to the counsel, can not be due to an encounter. One may not have to stretch oneself or to notice Modi's view on Medical Jurisprudence to say that blackening occurs only when the firing is from rather close range. I do not deem it appropriate to go further and make any comment on this line of argument advanced by learned counsel representing the petitioner, lest it prejudices the case of any one before me. The petitioner has claimed to be either an eye witness or in the C.M. NO.20940 OF 2007 & :{ 11 }: CIVIL WRIT PETITION NO.14941 OF 1994 knowledge of death of 10 persons, which he has described as murders. The persons named by the petitioner, who have been so allegedly killed by some of the respondents are listed as under:- “1. Nirmal Singh Nimma resident of Village & Post Office Rajeana, Tehsil Moga, District Faridkot. 2. Baljit Singh, resident of village Vadda Ghar, Tehsil Moga, District Faridkot. 3. Kulwant Singh Kanta, resident of Village Ghumiara, District Faridkot. 4. Baljinder Singh Bijliwala, resident of Village Ghumiara, District Faridkot. 5. Kartar Singh, resident of Village Karmitti, Tehsil Ferozepur Cantt., District Ferozepur. 6. Bahal Singh, resident of Village Padhari, District Ferozepur. 7. Satwant Singh Sodhi, resident of Village & Post Office Chaugawan, Tehsil Moga, District Faridkot. 8. Gurmukh Singh resident of Village Langeana, Tehsil Moga, District Faridkot. 9. Gurcharan Singh resident of Bedi Nagar, Moga, District Faridkot. 10. Nachhattar Singh Fauji, resident of village Daudhar, Tehsil Moga, District Faridkot.” The respondents, who have allegedly carried out these fake encounters, have ofcourse denied the allegations made against them but the independent account given on behalf of the State by C.M. NO.20940 OF 2007 & :{ 12 }: CIVIL WRIT PETITION NO.14941 OF 1994 Superintendent of Police, Faridkot, in fact would need to be noticed in this regard. As per the reply filed by S.S.P., Faridkot, the contents of the petition regarding killing of Nirmal Singh Nimma and Baljit Singh as made in Paras 14 and 15 of the petition are denied for want of knowledge. It is further stated that no such record is available, which may show that Nirmal Singh Nimma was either killed in any encounter or is absconding or arrested in any case. Bachan Singh Randhawa, against whom the allegation of killing Nirmal Singh Nimma, ofcourse has denied the said allegation. In regard to Baljit Singh, it is further stated that he was arrested in case FIR No.65 dated 10.10.1991 and was produced before the Court at Moga on 28.11.1992. It is then stated that he had absconded from the police lock up during the night intervening 28/29.9.1992 by making hole in the wall of the lock up. The copy of the FIR registered in regard to escape, which was recorded is also annexed with the reply. It is stated that Constable Gurmeet Singh was on Santry duty at the time when Baljit Singh escaped from the lock up who had been proceeded against by departmental enquiry. Baljit Singh has been declared proclaimed offender and the matter is at rest thereafter. It is not disclosed as to what action had been taken against Gurmeet Singh, who was found negligent. Story of escape by making a hole in the wall of a lock up, apparently would sound puerile. This story may seem to be carrying “hole” especially when seen that no action is disclosed against the person due to whose negligence, the person has escaped. Is it a mere negligence? One may notice the action in C.M. NO.20940 OF 2007 & :{ 13 }: CIVIL WRIT PETITION NO.14941 OF 1994 contrast which is taken by the authorities in regard to escape of some person from Chandigarh Jail. Obviously, some stringent action was bound to follow if it had been a fact. Punjab police, which had not investigated the case of escape or alleged death, can not now be expected to fairly investigate the same when the allegations are against pears. Baldev Singh is the next one in line who, as conceded in the reply, was arrested in FIR No.29 dated 2.4.1992. It is disclosed that during investigation made a disclosure that he had buried two bottle bombs in a bag somewhere on a link road in the area of Village Ranuke Kalan. It is then alleged that the bombs were so recovered and while the police party alongwith Baldev Singh was returning, they were ambushed by three militants. The story pressed further to disclose that the police party returned firing in self defence. During this encounter, Baldev Singh was statedly killed alongwith another militant, whereas the remaining succeeded in escaping. This led to a registration of FIR No.22 dated 2.4.1992. Copy of the post mortem report in respect of Baldev Singh is on record as Annexure R15/25. He had suffered injuries on the right side of lumber region, left side of the chest and left backside of the chest, at the upper level of scapula, right side of the chest at middle. All the margins were found inverted and blackened. Another person killed is Kulwant Singh Kanta. In regard to Baljinder Singh, it is mentioned that he was shown killed in an encounter, which took place between police party headed by ASI Gurdip Singh and two militants in the area of Village Bhagthala. He C.M. NO.20940 OF 2007 & :{ 14 }: CIVIL WRIT PETITION NO.14941 OF 1994 accordingly was shown having been killed in encounter. Similar story is projected that he was being taken on the basis of a disclosure statement made by him for recovery of arms and ammunitions. Here again the police party was ambushed, which opened fire, leading to killing of one militant whereas another one is stated to have escaped alongwith Balwinder Singh. Balwinder Singh had been declared as a proclaimed offender by the Court on 7.7.1993. The case has also been consigned to records, a good burial for an escape and for an encounter. Death of Kartar Singh is denied for want of knowledge and it is stated that there is no record available to show if Kartar Singh was ever arrested or killed in an encounter. However, in regard to Bahal Singh, the story about the ambush of police party is repeated, which was seen by S.H.O. Naginder Singh in village Kokri Kalan. When they were stopped, they allegedly opened fire on the police party, which returned the fire in self defence, leading to death of four militants. Post mortem reports in regard to the said persons are on record as Annexures R15/41, R15/42, R15/43 and R15/44. These four so called militants were identified as Bahal Singh, Gurmukh Singh, Balbir Singh and Kehar Singh. Similar story is projected in respect of death of Satwant Singh Sodhi and it is repeated that the police party was ambushed and then it opened fired, leading to Satwant Singh escaped from police custody. He has also been declared as a P.O. by the Court and proceedings consigned to records on 10.10.1994. It is pointed out that the petitioner could not have been a party to the said encounters as C.M. NO.20940 OF 2007 & :{ 15 }: CIVIL WRIT PETITION NO.14941 OF 1994 claimed by him as at that time he was on Santry duty in CIA Staff, Unit at Moga. That may not need any comment from the Court and would be a subject matter of investigation. It needs to be realised that case set up by the petitioner is that all these persons were tortured but fakely shown as having been killed in encounters. Obviously there was no encounter for which the petitioner could be a witness or an eye witness. This, however, will be a subject