State Of Punjab vs Davinder Pal Singh Bhullar & Ors.Etc

ASI Ramesh Lal, PSO, and CRPF jawans in the Escort vehicle were grievously injured. The bomb explosion was carried out by the terrorists from a parked car in order to kill the SSP, UT, Chandigarh, and other police personnel and this explosion was conducted with explosives operated with a remote control, because of which, two police personnel died on the spot and many others were grievously injured. Three of the accused, namely, Davinder Pal Singh Bhullar alias Master, Partap Singh Maan and Gursharan Kaur Maan were subjected to trial. The other co-accused namely, Navneet Singh, Manjit Singh, Manmohan Jit Singh, Gurjant Singh and Balwant Singh were not traceable. They were declared proclaimed offenders.

(C) Aggrieved, the State (U.T., Chandigarh) preferred Criminal Miscellaneous No.152-MA of 2007 before the High Court challenging the said acquittal. However, the appeal was dismissed vide judgment and order dated 11.5.2007.

(E) Shri Dinesh Bhatt, SSP, Chandigarh submitted an affidavit dated 4.8.2007, giving information regarding all the proclaimed offenders in that case. One of them was Davinder Pal Singh Bhullar, who had initially been declared as a proclaimed offender in the said case on 2.3.1993. However, he had subsequently been arrested in a case relating to FIR No.316 of 1993, Police Station, Parliament Street, Delhi and FIR No.150 of 1993, Police Station, Srinivas Puri, New Delhi and had been sentenced to death in a case in which an assassination 5 attempt was made on the life of Shri M.S. Bitta, the then President, All India Youth Congress, in which several persons were killed and Shri Bitta's legs were amputated. It was also mentioned therein that Balwant Singh Multani escaped from police custody and his whereabouts were not known. One proclaimed offender, Navneet Singh had been killed in a police encounter in Rajasthan on 26.2.1995.

(F) After considering the said affidavit filed by Shri Dinesh Bhatt, SSP, the High Court vide order dated 22.8.2007 directed the Chandigarh Administration to constitute a Special Investigation Team to enquire into all aspects of the proclaimed offenders and submit a status report. The High Court also issued notice to the Central Bureau of Investigation (hereinafter called the `CBI').

(J) However, the High Court vide order dated 5.10.2007, directed the CBI to investigate the allegations of Darshan Singh Multani regarding his missing son and further directed the CBI not to disclose the identity of any of the witnesses to anyone except the High Court and to code the names of witnesses as witness A, B & C and further to submit periodical status reports. The order further reads:-

(K) In the same matter, the Bench entertained another Criminal Miscellaneous Application on 30.10.2007 filed by Davinder Pal Singh Bhullar, (a convict in another case and lodged in Tihar Jail) regarding allegations that his father Shri Balwant Singh Bhullar and maternal uncle Shri Manjit Singh had been abducted in the year 1991. The High Court vide order dated 6.11.2007 directed the CBI to investigate the allegations made in the complaint filed by Davinder Pal Singh Bhullar and further to get his statement recorded under Section 164 Cr.P.C., so that the witness may not resile under duress or be won over by any kind of inducement. An order was passed rejecting the submission made on behalf of the CBI that the alleged kidnapping of Shri Balwant Singh Bhullar and Shri Manjit Singh had no connection with the said case arising out of FIR No.334 dated 29.8.1991.

(L) The CBI after making a preliminary investigation/enquiry on the application, registered an FIR on 2.7.2008 under Sections 120-B, 364, 343, 330, 167 and 193 IPC against Shri S.S. Saini, the then SSP, UT, Chandigarh, Shri Baldev Singh Saini, the then DSP, UT, Chandigarh, Shri Harsahay Sharma, the then SI, P.S. Central, 8 Chandigarh, Shri Jagir Singh, the then SI, P.S. Central, Chandigarh and other unknown police officials of UT Police, Chandigarh, and P.S. Qadian. The CBI further submitted a status report on 4.7.2008 and after considering the same, the High Court issued further directions to complete the investigation within the stipulated period and submit a further report.

5. The State of Punjab, being aggrieved, approached this Court submitting that it has to espouse the cause of its officers who fought war against terrorism, putting themselves at risk during the troublesome period in the early 1990s. That Shri S.S. Saini, SSP, has been one of the most decorated officers of the State having outstanding entries in his Service Book. He is an honest and hardworking officer and has taken drastic steps to curb terrorism in the State in early 1990s. The terrorists had planned a diabolical act and an attempt was made on his life, wherein his three bodyguards were killed and three others were seriously injured. The officer himself suffered grievous injuries. The terrorists had also even chased him up to England when he went there for a social visit. They had planned to attack the said officer. They were arrested by the police and put to trial and also stood convicted. A sentence of four years had been imposed. These appeals have been 9 filed on various grounds, including: the judicial bias of the Judge presiding over the Bench by making specific allegations that the officer named in the order i.e. Shri S.S. Saini had conducted an enquiry against the Presiding Judge (hereinafter called "Mr. Justice X") on the direction of the Chief Justice of Punjab & Haryana High Court and, thus, the said Judge ought not to have proceeded with the matter, rather should have recused himself from the case. More so, as the judgment in appeal against acquittal had been passed by the Court on 11.5.2007 upholding the judgment of acquittal, the Court has become functus officio and it had no competence to reopen the case vide order dated 30.5.2007.

7. Shri Ram Jethmalani, Shri Ravi Shankar Prasad and Shri Ranjit Kumar, learned senior counsel appearing for the appellants, have submitted that once the judgment in appeal against acquittal has been rendered by the High Court on 11.5.2007, in view of the complete embargo of the provisions of Section 362 Cr.P.C., the Court having become functus officio was not competent to reopen the case and, thus, 1 proceedings subsequent to 11.5.2007 are a nullity for want of competence/jurisdiction. More so, the proceedings that continued after the said judgment, by illegally reopening the case, were a result of judicial bias of Mr. Justice X, which was just to take revenge against Shri S.S. Saini, who had conducted an inquiry against Mr. Justice X and thus, all such proceedings are liable to be quashed. None of the parties had ever named Mr. S.S. Saini in connection with any of the cases. It was Mr. Justice X, who, on his personal knowledge, mentioned his name in court order dated 5.10.2007. Such a course is not permissible in law. More so, so far as Balwant Singh Multani's case is concerned, his father Darshan Singh Multani (at the relevant time an officer of Indian Administrative Service) had approached the High Court for the same relief and the case stood dismissed in the year 1991 and he had not taken up the matter any further. Thus, the proceedings attained finality. Application of Mr. Multani could not have been entertained after the expiry of 16 years. The same position existed in respect of the application filed by Davinder Pal Singh Bhullar (who had been convicted and awarded a death sentence in another case and the same stood confirmed by this Court) in respect of abduction of his father Balwant Singh Bhullar and uncle Manjit Singh in the year 1991 without 1 furnishing any explanation for delay of 16 years. More so, Mrs. Jagir Kaur, sister of Balwant Singh Bhullar, had filed Crl. W.P. No. 1062 of 1997 for production of Balwant Singh Bhullar, which stood dismissed vide order dated 15.7.1997 only on the ground of delay. A second writ petition for habeas corpus is not maintainable and is barred by the principles of res judicata. The CBI submitted that investigation of the said alleged abduction be not tagged with that of the involvement of the officer and disappearance of Balwant Singh Multani, as both the incidents were separate and independent and had no connection with each other. The High Court after taking note of the said submissions in its order dated 6.11.2007 illegally clubbed both the said applications.

The applications filed by Davinder Pal Singh Bhullar and Darshan Singh Multani could not be filed/entertained in the disposed of criminal appeal. Had the said applications been filed independently, the same could be rejected as being filed at a much belated stage. Even otherwise, the said applications could have gone to a different Bench.

Thus, the appeals are liable to be dismissed.

55. It is evident from the order dated 30.5.2007 that in spite of the fact that the appeal stood disposed of vide judgment and order dated 11.5.2007, there appears an order in the file: "put up for further hearing". That means the matter is to be heard by the same Bench consisting of Judges `X' and `A'. However, the matter was listed before another Bench on 2.7.2007 and the said Bench directed to list the matter before DB-IV after taking the appropriate order from the Chief Justice. In absence of the Chief Justice, the senior most Judge passed the order on 5.7.2007 to list the matter before the DB-IV. The matter remained with the Presiding Judge, though the other Judge changed most of the time, as is evident from the subsequent order sheets. Order sheet dated 30.5.2007 reveals that it was directed to put up the case for further hearing. Thus, it should have been heard by the Bench as it was on 30.5.2007.

and, therefore, the attempt to invoke that power can be of no avail.

43. In view of the above, the legal regime, in this respect emerges to the effect that the Bench gets jurisdiction from the assignment made by the Chief Justice and the Judge cannot choose as which matter he should entertain and he cannot entertain a petition in respect of which jurisdiction has not been assigned to him by the Chief Justice as the order passed by the court may be without jurisdiction and made the Judge coram non-judice.

VI. WHEN CBI ENQUIRY CAN BE DIRECTED:

INSTANT CASES :

49. The present appeals are required to be decided in the light of the aforesaid settled legal propositions.

50. It is evident from the judgment and order dated 11.5.2007 that Criminal Misc. No.152-MA of 2007 stood dismissed. The order sheet dated 30.5.2007 reveals that in spite of the disposal of the said criminal appeal it had been marked therein as "put up for further hearing" and the order dated 30.5.2007 reveals the directions given to the Trial Court to furnish a detailed report as to the measures taken by it to bring the proclaimed offenders, namely Navneet Singh, Manjit Singh, Manmohan Singh, Gurjant Singh and Balwant Singh before the Court and the case was adjourned for 2nd July, 2007.

54. Admittedly, the application for Leave to Appeal stood disposed of vide judgment and order dated 11.5.2007. The matter suddenly appeared before the Bench on 30.5.2007 and the Court directed the Police to furnish information regarding the proclaimed offenders and a detailed report as to the measures taken to procure the presence of the said proclaimed offenders, namely, Navneet Singh, Manjit Singh, Manmohan Singh, Gurjant Singh and Balwant Singh so that they may face trial. However, after hearing the matter on few dates, the Court vide order dated 5.10.2007 closed the chapter of proclaimed offenders observing as under:

In view of the law referred to hereinabove, the Bench was not competent to entertain the said applications and even if the same had been filed in the disposed of appeal, the court could have directed to 5 place the said applications before the Bench dealing with similar petitions.

(Emphasis added) 5

59. There could be no justification for the Bench concerned to entertain applications filed under Section 482 Cr.P.C. as miscellaneous applications in a disposed of appeal. The law requires that the Bench could have passed an appropriate order to place those applications before the Bench hearing 482 Cr.P.C. petitions or place the matters before the Chief Justice for appropriate orders.

60. As the High Court after rejecting the applications for leave to appeal had passed several orders to procure the presence of the proclaimed offenders so that they could be brought to justice, neither the State of Punjab nor Mr. S.S. Saini could be held to be the persons aggrieved by such orders and therefore, there could be no question of raising any protest on their behalf for passing such orders even after disposal of the application for leave to appeal as such orders were rather in their favour. The appellants became aggrieved only and only when the High Court entertained the applications filed under Section 482 Cr.P.C. for tracing out the whereabouts of certain persons allegedly missing for the past 20 years. Such orders did not have any connection with the incident in respect of which the application for leave to appeal had been entertained and rejected. An application for leave to appeal that has been dismissed against an order of acquittal cannot provide a 5 platform for an investigation in a subject matter that is alien and not directly concerned with the subject matter of appeal.

61. Undoubtedly, in respect of such missing persons earlier habeas corpus petitions had been filed by the persons concerned in 1991 and 1997 which had been dealt with by the courts in accordance with law.

The writ petition for habeas corpus filed by Mrs. Jagir Kaur in respect of Balwant Singh Bhullar had been dismissed in 1997 only on the ground of delay. We fail to understand how a fresh petition in respect 5 of the same subject matter could be entertained after 10 years of dismissal of the said writ petition.

62. A second writ petition for issuing a writ of habeas corpus is barred by principles of res judicata. The doctrine of res judicata may not apply in case a writ petition under Article 32 of the Constitution is filed before this Court after disposal of a habeas corpus writ petition under Article 226 of the Constitution by the High Court. However, it is not possible to re-approach the High Court for the same relief by filing a fresh writ petition for the reason that it would be difficult for the High Court to set aside the order made by another Bench of the same court.

In case, a petition by issuing Writ of Habeas Corpus is dismissed by the High Court and Special Leave Petition against the same is also dismissed, a petition under Article 32 of the Constitution, seeking the same relief would not be maintainable.

65. Thus, in view of the above, the law in the issue emerges that a case is to be decided on its facts taking into consideration whether really new issues have been agitated or the facts raised in subsequent writ petition could not be known to the writ petitioner while filing the earlier writ petition.

67. The High Court has adopted an unusual and unwarranted procedure, not known in law, while issuing certain directions. The court not only entertained the applications filed by Shri Davinder Pal Singh Bhullar and Darshan Singh Multani in a disposed of appeal but enlarged the scope of CBI investigation from proclaimed offenders to other missing persons. The court directed the CBI to treat affidavits handed over by the applicant Shri Bhullar who admittedly had inimical relation with Shri S.S. Saini, as statement of eye-witnesses. The court further directed the CBI to change the names of witnesses to witness (A), (B) or (C) and record their statements under Section 164 Cr.P.C. so that they could not resile at a later stage. We fail to understand how the court could direct the CBI to adopt such an unwarranted course.

71. The order impugned has rightly been challenged to be a nullity at least on three grounds, namely, judicial bias; want of jurisdiction by virtue of application of the provisions of Section 362 Cr.P.C. coupled with the principles of constructive res judicata; and the Bench had not been assigned the roster to entertain petitions under Section 482 Cr.P.C.

The entire judicial process appears to have been drowned to achieve a motivated result which we are unable to approve of.

72. It is a settled legal proposition that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order. In such a fact-situation, the legal maxim "sublato fundamento cadit opus" meaning thereby that foundation being removed, structure/work falls, comes into play and applies on all scores in the present case.

74. Similarly in Mangal Prasad Tamoli (dead) by Lrs. v.

76. Thus, in view of the above, we are of the considered opinion that the orders impugned being a nullity, cannot be sustained. As a consequence, subsequent proceedings/orders/FIR/ investigation stand automatically vitiated and are liable to be declared non est. 6

A large number of judicial pronouncements made by this Court leave no manner of doubt that the dismissal of the Special Leave Petition in limine does not mean that the reasoning of the judgment of the High Court against which the Special Leave Petition had been filed before this Court stands affirmed or the judgment and order impugned merges with such order of this Court on dismissal of the petition. It simply means that this Court did not consider the case worth examining for a reason, which may be other than merit of the case. An order rejecting the Special Leave Petition at the threshold without detailed 6 reasons, therefore, does not constitute any declaration of law or a binding precedent.

The doctrine of res judicata does not apply, if the case is entertained afresh at the behest of other parties. No inference can be drawn that by necessary implication, the contentions raised in the special leave petition on the merits of the case have been rejected. So it has no precedential value.

CONCLUSIONS :

79. In view of the above, the appeals succeed and are accordingly allowed. The impugned orders challenged herein are declared to be nullity and as a consequence, the FIR registered by the CBI is also quashed.