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2001 DIGILAW 295 (PNJ)

Balbir Singh v. State Of Punjab Through C. B. I.

2001-03-05

K.S.GAREWAL

body2001
Judgment K.S.Garewal, J. 1. The petitioners are facing trial before learned Additional Sessions Judge, Patiala in a quadruple murder case on the basis of the F.I.R. No. RC-13(S)/97/SIU-XVI/JMU dated February 28, 1997 under sections 364/302/34 read with Sections 120-B/201/218 of the Indian Penal Code. The petitioners presented an application before the learned trial judge under section 227 Cr.P.C. seeking discharge on the ground that court could not take cognizance of the offences without the sanction of the Central Government. In the present case, sanction for prosecution had been granted by the State Government. The trial Judge came to the conclusion that sanction of the Central Government under section 6 of the Punjab Disturbed Area Act, 1983 was not required because the petitioners had not been found to have acted in discharge of their duty. The petition was accordingly dismissed on January 31, 2000. 2. The petitioners contended that on July 22, 1993 at 3.00 A.M. the petitioners were members of a police party which had set up a picket near Palasaur alongwith 31 other personnel. At 4.30 A.M. two scooters approached the picket each carrying two riders. They were signalled to stop but they disobeyed the orders. These persons got off the scooters and took up positions behind the banks of a nearby drain and opened fire on the police party. The fire was returned. Cross-firing continued till 5.00 A.M. When the firing stopped the police moved towards the point from where the fire had been directed. The area was cordoned off and searched; ultimately four dead bodies were found. Near each of the dead bodies fire arms were also found alongwith other articles. Only one body was identified as that of Karnail Singh alias Raju son of Darshan Singh of Zira. Photographs of the other three dead bodies were taken but no one came forward to claim them. The dead bodies were cremated unidentified and unclaimed. F.I.R. No. 70 was registered at Police Station Tarn Taran on the same day under sections 307/34 of the Indian Penal Code and Section 25 of the Arms Act against the persons who had got killed. The three unidentified deceased were later on identified as Jarnail Singh alias Pappu son of Darshan Singh resident of Zira, Harjinder Singh alias Sukhjinder Singh son of Kishan Singh resident of Zira and Gulshan Kumar alias Kalu son of Chaman Lal resident of Jandiala Road, Tarn Taran. The three unidentified deceased were later on identified as Jarnail Singh alias Pappu son of Darshan Singh resident of Zira, Harjinder Singh alias Sukhjinder Singh son of Kishan Singh resident of Zira and Gulshan Kumar alias Kalu son of Chaman Lal resident of Jandiala Road, Tarn Taran. 3. Much later when the Honble Supreme Court of India passed an order directing an inquiry into cremation of unclaimed bodies, investigation was commenced and a case was registered on December 26, 1995. During the course of this inquiry the statement of Chaman Lal, father of Gulshan Kumar above- mentioned, was recorded on November 22, 1996 and on its basis F.I.R. No. 13(S)/97 SIU/XVI/Jammu was registered on February 28, 1997. 4. The petitioners further contend that on July 22, 1993 the place where the occurrence had taken place, was a declared disturbed area to which the provisions of the Punjab Disturbed Area Act, 1983 were applicable. Reference was made in particular to Section 4 of the Act which permitted a Magistrate or a police officer not below the rank of a Sub Inspector or a Havaldar in the case of armed branch of the police, to open fire and even cause death of any person, if in his opinion it was necessary to do so for the maintenance of the public order and the person whose death was caused was acting in contravention of any law or order for the time being in force in the area where there was prohibition of assembly of five or more persons or there was prohibition of the carrying of weapons or fire arms. In terms of Section 6 of the Act, no prosecution could be instituted, except with the previous sanction of the Central Government, against any person in respect of having done any act in exercise of the powers conferred by Sections 4 and 5 of the Act. 5. Therefore, the learned Additional Sessions Judge could not have taken cognizance of the offences and framed charges because no sanction had been obtained by C.B.I. from Central Government for their prosecution. Sanction being necessary as the accused had acted in exercise of the powers conferred by Section 4 of the Act when the police picket was fired upon by the four deceased. 6. Sanction being necessary as the accused had acted in exercise of the powers conferred by Section 4 of the Act when the police picket was fired upon by the four deceased. 6. The provision of law, no doubt, is in favour of the petitioners but the prosecutions categorical case is that the accused had staged a fake encounter. Gulshan Kumar alias Kalu was already in the custody of the police when the alleged occurrence took place. Therefore, the whole story was a false one. The version of the accused was certainly contained in the F.I.R. but that was not at all the version of the prosecution which was based on the evidence of the witnesses who established that Gulshan Kumar was already in police custody and consequently his death in the early hours of July 22, 1993 was under an entirely different set of circumstances as also, as a corollary, were the deaths of three other deceased. All the deceased had been cremated unidentified and unclaimed. The respondents have contended that sanction had been obtained for the prosecution of the accused from the State Government in terms of Section 197 Cr.P.C. but that was only by way of abundant caution. Nevertheless the criminal acts of the petitioners had not been performed in discharge of their official duties and for this reason sanction under section 197 Cr.P.C. was not at all necessary. 7. It would be grossly unfair and unjust to discuss the defence of the petitioners in detail and analyse the facts of the case in the light of the F.I.R. No. 70 dated July 22, 1993 because it might cause untold prejudice to the defence. In case the above F.I.R. stands scrutiny then it would likewise cause prejudice to the prosecution. It would be suffice to hold that sanction is required by law only if the accused are alleged to have committed the offence while acting or purporting to act in the discharge of their official duty. The offences for which the petitioners are to be tried can by no stretch of imagination be said to have been committed by them in the discharge of their official duties. Therefore, neither the provisions of the Punjab Disturbed Areas Act, 1983 nor the provisions of Section 197 Cr.P.C. are applicable to the prosecution case against the petitioners. The offences for which the petitioners are to be tried can by no stretch of imagination be said to have been committed by them in the discharge of their official duties. Therefore, neither the provisions of the Punjab Disturbed Areas Act, 1983 nor the provisions of Section 197 Cr.P.C. are applicable to the prosecution case against the petitioners. It would be a fallacy to hold that sanction of the Central Government is required because the Punjab Disturbed Areas Act, 1983 was applicable and the petitioners had exercised their power under section 4 thereof. If this contention is accepted then not only would sanction be required but the argument could be further extended to hold that the petitioners had committed no offence what-so-ever and deserved outright discharge. The prosecution in this case does not rely upon the "police version" of the case but entirely on its own version which is based on oral and documentary evidence which shall be presented at the trial. Resultantly, this petition is held to be totally devoid of merit and the same is hereby dismissed.