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2001 DIGILAW 170 (PNJ)

Dharam Singh v. State through CBI

2001-02-01

S.S.NIJJAR

body2001
JUDGMENT S.S. Nijjar, J. - All the three petitioners are present in Court. The petitioners are being prosecuted for having committed offence under Sections 364/302/218/34 Indian Penal Code. It is the case of the prosecution that Baljit Singh and Rajwant Singh (sons of Kashmir Singh) were picked up by Dharam Singh, S.I./S.H.O., P.S. Lopoke and his subordinates on 13.12.1992. On the same day, Kashmir Singh was compelled by Dharam Singh to disclose the whereabouts of his other son Daljeet Singh. Thereafter, Daljeet Singh (hereinafter referred to as the deceased) was picked up and taken to Police Station Lopoke. Kashmir Singh, his sons Rajwant Singh and Baljit Singh were released on 15.12.1992. According to the FIR No. 96/92, registered at Police Station, Ajnala, Daljeet Singh was shown to have been killed alongwith one Jagira by Baljit Singh, Dy. SP. (D) together with other police officials on 29.12.1992. As per the police version, the deceased just before his death disclosed his own identity as well as the identity of other deceased person, namely Jagira. According to the post-mortem report, the deceased received eight fire-arm injuries on his body. These injuries were sufficient to cause death immediately. The dead bodies of Daljeet Singh and Jagira were cremated "unclaimed" by the police. According to the prosecution, the police were aware of the identities of the deceased. According to the prosecution, the alleged encounter put forward by the police is sham and bogus. It is in fact a stage-managed encounter. 2. It is not disputed that after thorough investigation, the three petitioners have been charge-sheeted and are facing trial in the Court of Shri J.S. Chawla, Additional Sessions Judge, Patiala. On 15.11.1995, the Supreme Court in Crl. Writ Petition No. 497/95 (Mrs. Paramjit Kaur v. State of Punjab) directed the CBI to conduct a preliminary enquiry with regard to the large number of dead-bodies cremated by the Punjab Police as unclaimed (Lawaris). In pursuance of the enquiry, the Supreme Court further directed the CBI by its order dated 12.12.1996 to investigate thoroughly the horrendous acts of unceremonious cremation of dead bodies under the label "unidentified". The present case was registered on the statement of Kashmir Singh as noticed earlier. In pursuance of the enquiry, the Supreme Court further directed the CBI by its order dated 12.12.1996 to investigate thoroughly the horrendous acts of unceremonious cremation of dead bodies under the label "unidentified". The present case was registered on the statement of Kashmir Singh as noticed earlier. The petitioners had earlier filed an application for anticipatory bail under Section 438 Criminal Procedure Code However, when the case was entrusted to the trial Court, they filed an application for bail under Section 439 Criminal Procedure Code After considering the entire matter, the trial Court has come to the conclusion that in case the petitioners are enlarged on bail, a fair trial cannot be expected and there is every chance that the petitioners will either threaten or try to win over the prosecution witnesses. Therefore, the application for regular bail has been dismissed. However, two weeks time was granted to the petitioners to obtain fresh bail orders from the higher Court. This direction is said to be given on the basis of the judgment of the Supreme Court in the case of K.L. Verma v. State and another, 1997(1) RCR (Crl.) 493. Hence the present application for bail has been presented to this Court. 3. The prosecution given by the trial Court had been extended from time to time. The first order was passed on 18.10.2000 in the presence of Mr. Rajan Gupta, counsel for the C.B.I. Mr. Cheema appearing for the petitioners has submitted that the petitioners are now sought to be arrested after a period of eight years. During investigation, the CBI did not deem it necessary to arrest the petitioners. The petitioners have been regularly attending the Court. No specific roles have been attributed to the petitioners. According to the learned Counsel for the petitioners, even if the prosecution succeeds, the petitioners would perhaps be punished only under Sections 342, 364 and 201 Indian Penal Code. 4. On the other hand, Mr. Rajan Gupta appearing for the CBI has vehemently argued that the trial Court itself had come to the conclusion that in case the petitioners are enlarged on bail, they would either threaten or try to win over the prosecution witnesses. It was not open to the trial Court to stay its own order. 4. On the other hand, Mr. Rajan Gupta appearing for the CBI has vehemently argued that the trial Court itself had come to the conclusion that in case the petitioners are enlarged on bail, they would either threaten or try to win over the prosecution witnesses. It was not open to the trial Court to stay its own order. Having once refused to grant bail, the Additional Sessions Judge had become functus officio and further protection could not have been granted to the petitioners. Mr. Gupta has further argued that the trial Court, having considered the matter, rejected the application for bail. This court would not now be justified in granting bail. Mr. Gupta has also submitted that the submission of the petitioners to the effect that the deceased who had been killed, was a terrorist, is wholly irrelevant whilst considering the application for bail. Whether or not the deceased was a terrorist, he was entitled to be treated in accordance with law. Learned Counsel for the CBI has also submitted that the charges against the petitioners are of a very serious nature and as a rule, in such cases, bail is not granted. 5. I have considered the submissions made by the learned Counsel for the parties. 6. In my view, the learned trial Court could not have granted protection to the petitioners, after having rejected the application for bail. The provision for interim bail is available to the court whilst considering an application for anticipatory bail under Section 438 Criminal Procedure Code Having come to the conclusion that the petitioners are not entitled to be enlarged on bail, the trial Court ought not to have stayed its own order. The judgment in the case of K.L. Verma (supra) was dealing with the provisions of Section 438 Criminal Procedure Code It was pointed out by the Supreme Court that anticipatory bail orders are of a limited duration. They will enure only till the trial Court is in a position to consider the application for regular bail. The limited duration of protection by way of anticipatory bail is needed to be given to the accused for a short period of time to unable him to move the court for regular bail and to give the court sufficient time to determine the bail application. The limited duration of protection by way of anticipatory bail is needed to be given to the accused for a short period of time to unable him to move the court for regular bail and to give the court sufficient time to determine the bail application. The Supreme Court clarified that till the bail application is disposed of one way or the other, the Court may allow the accused to remain on anticipatory bail. In such circumstances, I am of the opinion that the trial Court was not justified in staying its own order. This in itself, however, would not make any difference to the exercise of the power for grant of bail by this Court by virtue of Section 439 Criminal Procedure Code read with Section 482 Criminal Procedure Code This Court has the power and the jurisdiction to independently consider the application for bail on the basis of the facts and the material placed before it by the parties. Whilst considering the application for bail under Section 439 Criminal Procedure Code, a number of factors have to be kept in mind by the Court. The crime being of a heinous nature is one of the considerations whilst exercising the discretion by the Court whether to grant bail or not. It would not be possible to hold that the court is powerless to grant bail as soon as allegation of murder is made against an accused. This would make serious inroads into the discretionary powers of the superior judiciary granted by the Parliament under Sections 438 and 439 Criminal Procedure Code Apart from considering the allegations and counter-allegations made by the parties, the Court has to come to a conclusion as to whether or not a fair trial is possible if a person is released on bail. An accused generally may be permitted to be kept in custody during the trial if the Court is satisfied that if released on bail, the accused will not be available for trial. In other words, if the Court is satisfied that the accused is likely to abscond the custody during the trial would be justified. The accused may also be kept in custody during the trial, if the court is satisfied that if the accused is enlarged on bail, he/she is likely to influence the witnesses or tamper with the evidence. Excepting this situation, the well-known rule is "bail not jail". 7. The accused may also be kept in custody during the trial, if the court is satisfied that if the accused is enlarged on bail, he/she is likely to influence the witnesses or tamper with the evidence. Excepting this situation, the well-known rule is "bail not jail". 7. Mr. Gupta is justified in saying that the petitioners cannot take advantage of not being arrested between the years 1992 to 1997 when the matter was ultimately handed over to the CBI for investigation. Till that time, the petitioners were not accused of any crime. Therefore, the question of their arrest did not arise. That, however, still leaves a period of three years during which the CBI did not deem it appropriate to arrest the petitioners. Mr. Gupta has placed strong reliance on the observations made by the Enquiry Officer in its report dated 12.4.1996. The Enquiry Officer opined as follows :- "I have already made reference to the detailed statement of the complainant regarding the nature of harassment caused to him during the pendency of this enquiry. The complainant has given names of other police officials who were calling him from time to time. They are not the respondents before me and as such, they had no opportunity to defend themselves. The inference can however be drawn that the harassment during the inquiry was caused to the complainant/petitioner at the instance of Dharam Singh, who was directly in the picture and even some superior police officers who might have been interested in frustrating the inquiry. 18. This report is accordingly submitted before the Honble Court, as desired, for consideration. Announced. Sd/- Sessions Judge, 12.4.1996, Amritsar." 8. The trial Court also, whilst coming to the conclusion that a fair trial would not be held if the petitioners are released on bail, has stated as follows :- "13. The enquiry conducted by Shri G.L. Chopra, the then District and Sessions Judge, Amritsar, shows the involvement of the applicants/accused in the disappearance and subsequent wrongful confinement of Daljeet Singh. He further observed in his enquiry report that the attempt was made by the police to put pressure on the complainant, so that he may not continue to pursue the enquiry. He further observed in his enquiry report that the attempt was made by the police to put pressure on the complainant, so that he may not continue to pursue the enquiry. It was further observed that the inference can, however, be drawn that the harassment during enquiry was caused to the complainant at the instance of Dharam Singh, who was directly in the picture and even some superior police officer who might have been interested in frustrating the enquiry. Thus, the report of the Enquiry Officer shows that the applicants-accused used all methods in preventing the complainant and his witnesses to appear against them before the Enquiry Officer. In case, they are enlarged on bail, the fair trial cannot be expected and there are every chances that they would either threaten or try to win over the prosecution witnesses." 9. The Enquiry Officer gave the report on 12.4.1996. It has been clearly indicated that the petitioners are putting pressure on the witnesses. Yet, it is stated in the reply filed by the CBI that the petitioners were never arrested as it was not deemed necessary during investigation. The trial Court has merely followed the observations made by the Enquiry Officer. In a long span of four years, no details have been put on record to show as to in what manner, the prosecution witnesses had been threatened. During all this period, the petitioners have been regularly attending the court. At no stage, any complaint has been made to the Judge to indicate that there have been any threats other than the one which was noticed by the enquiry officer in its report dated 12.4.1996. In the absence of any material on record, I am of the considered opinion that the court would be wholly in justified to make any remarks against the conduct of the petitioners. It was been brought to the notice of the court that S.I. Swaran Singh has since died. Tarsem Lal- petitioner No. 2 has since retired. Only petitioners No. 1 and No. 3 are on active duty. 10. Having considered the entire matter and without expressing any opinion on the merits of the case, I am of the considered opinion that the petitioners deserve to be enlarged on bail. However, the petitioners, being police officials, the possibility of the petitioners attempting to influence, the complainant cannot be ruled out. Mr. 10. Having considered the entire matter and without expressing any opinion on the merits of the case, I am of the considered opinion that the petitioners deserve to be enlarged on bail. However, the petitioners, being police officials, the possibility of the petitioners attempting to influence, the complainant cannot be ruled out. Mr. Gupta has rightly pointed out that the petitioners belonging to the police department have been given partial treatment by the superiors and they have not even been suspended. Thus, they are still enjoying full powers of the police. 11. I am of the considered opinion that certain directions have to be issued to the Director General of Police, Punjab to ensure that the petitioners are in no position to hamper the fair trial. As noticed earlier, after the dismissal of the application for bail by the Additional Sessions Judge, normally, the petitioners would have been taken into custody. Had the petitioners been taken into custody under the relevant service rules, the petitioners would have been deemed to be suspended after remaining in custody for a period of 24 hours. This consequence has been avoided only due to the erroneous directions given by the Additional Sessions Judge, Patiala granting protection to the petitioners till they move the higher court for regular bail. Consequently, the Director General of Police, Punjab is directed to forthwith suspend petitioners No. 1 and 3. Furthermore, the D.G.P. Punjab is directed to ensure that they are confined to their respective police lines. All the petitioners are directed not to interfere with the life and liberty of the witnesses including the complainant in any manner. The Headquarters of the petitioners No. 1 and 3 shall not be fixed at Amritsar or Patiala. All the petitioners are specifically prohibited from in any manner contacting the complainant Kashmir Singh and any other witnesses which the prosecution has cited. The petitioners are directed to surrender any fire-arms in their possession, official as well as personal, to the satisfaction of the trial Court within a period of seven days from today. If the petitioners are in possession of any passport or any other travel documents, the same be also surrendered to the satisfaction of the trial Court. The petitioners are granted bail subject to their furnishing personal security in the sum of Rs. If the petitioners are in possession of any passport or any other travel documents, the same be also surrendered to the satisfaction of the trial Court. The petitioners are granted bail subject to their furnishing personal security in the sum of Rs. 1.00 lac each and two sureties of the like amount to the satisfaction of the trial Court. The prosecution or any of the witnesses shall be at liberty to move the court for cancellation of bail if there is any infringement of the conditions mentioned above. Order accordingly.