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2006 DIGILAW 309 (PNJ)

Paramjit Kaur v. State Of Punjab

2006-02-03

NIRMAL YADAV

body2006
Judgment Nirmal Yadav, J. 1. Vide this petition Petitioner Paramjit Kaur has sought issuance of a writ of habeas corpus for production/investigation into disappearance of her husband Surjit Singh, resident of Village Bhorchi Rajput, District Amritsar. 2. As per allegations made by the petitioner, on 7.5.1992 at about 12.00 P.M. village Bhorchi Rajput was surrounded by a large number of police personnel led by D.S.P. Balkar Singh, SHO Udham Singh and ASI Satwant Singh of Police Station Jandiala Guru. The seizure operation continued till 7.00 P.M. The police party took away some persons including petitioners husband Surjit Singh. The other two persons, namely, Jatinder Singh and Parmjit Singh were released after some time, but Surjit Singh was not released, rather FIR was registered against him at Police Station Jandiala Guru alleging that Surjit Singh had escaped from police custody. According to the petitioner, Surjit Singh had not escaped from the police custody, rather he was killed by the police in their custody. Petitioner, therefore, prays for an independent inquiry into the matter. 3. In the reply filed by the Senior Superintendent of Police, Amritsar, it is stated that Surjit Singh was arrested on 8.5.1992 by S.H.O. Udham Singh while he was holding a Naka in the area of village Bhorchi. A foreign make mouser .30 bore along with seven live cartridges were recovered from him. He could not produce any licence or permit for possessing the same. Accordingly, F.I.R. No. 64 dated 8.5.1992, under Sections 25/54/59 of the Arms Act was registered against him in Police Station Jandiala Guru. During investigation, he made a disclosure statement that one Pipal Singh had kept concealed arms and ammunition in the Mand area and he had knowledge of the same and that he could get the same recovered. While Surjit Singh was being taken to the disclosed place, he expressed desire to answer the call of nature in the area of village Rattan Garh. He went to the nearby fields and escaped from the police custody. Many efforts were made to arrest him, but in vain. Ultimately he was declared proclaimed offender. According to police, Surjit Singh escaped from the police custody when he was taken to recover the arms and ammunition in the Mand area. 4. He went to the nearby fields and escaped from the police custody. Many efforts were made to arrest him, but in vain. Ultimately he was declared proclaimed offender. According to police, Surjit Singh escaped from the police custody when he was taken to recover the arms and ammunition in the Mand area. 4. In her rejoinder, the petitioner denied the averments made in the written statement filed by the police and she reiterated that her husband has been murdered by the police officials in a fake encounter. This Court vide order dated 1.4.2003 transferred the investigation to the Central Bureau of Investigation. The Central Bureau of Investigation was directed to look into the matter to record a finding whether Surjit Singh, husband of the petitioner had been killed by the police or he had escaped on the night of 8.5.1992 while he was being taken for recovery of arms and ammunition. 5. The Superintendent of Police, Central Bureau of Investigation, SCB, Chandigarh, vide dated 23.12.2004 has reported that after completion of investigation, charge-sheet has been filed by the Central Bureau of Investigation in the Court of SJMIC, Patiala on 22.12.2004. Concluding portion of the report submitted by the Central Bureau of Investigation is reproduced as under "The aforesaid facts and circumstances clearly establish that the accused Dy. SP Balkar Singh and other mentioned in Col. No. 1 of this charge- sheet kidnapped Surjit Singh from his village along with 2 others and wrongfully confined them, tortured them, caused voluntarily hurt for the purpose of extorting from Surjit Singh a confession or information which may lead to the detection of an offence or recovery of arms and about other militants resulting in grievous injury to Surjit Singh necessitating carrying him by 4 persons on their shoulders and, thereafter, caused disappearance of evidence of commission of these offence with the intention of screening themselves and others and framed incorrect record knowing that they are incorrect with intent to cause or knowing it to be likely that it will thereby cause or save any person from legal punishment in furtherance of a criminal conspiracy amongst them. The aforesaid facts and circumstances, prima facie constitute offences against DSP Balkar Singh, Inspector Udham Singh, ASI Satwant Singh u/ss 363, 342, 330, 201, 218 r/w 120-B IPC and substantive offences and u/s 120-B IPC r/w 342, 330, 218, 201 IPC against Constables Sahib Singh No. 1001/MJ, Balkar Singh No. 1068/M.J., Bir Singh No. 680/MJ Gopal Singh No. 348/GSP, PHG Tarsem Singh No. 19824, Ct. Driver Jasbir Singh No. 5040. Hence it is prayed that the accused persons may be summoned and tried in accordance with law." 6. Learned counsel for the petitioner vehemently argued that as per the charge-sheet submitted by the Central Bureau of Investigation, there is sufficient material on record to prosecute the police officers/officials for abduction and murder of Surjit Singh. He further argued that investigation carried out by Central Bureau of Investigation clearly points out a finger of guilt at the police officers/officials. 7. In the present case, no doubt, the investigation conducted by the Central Bureau of Investigation points out a finger of suspicion at the police officers/officials mentioned therein. However, whether the circumstances mentioned therein are sufficient to prosecute them for abduction and murder of Surjit Singh, is the matter for the consideration of concerned Court, which is seized of the trial. Therefore, I need not express any opinion on this question. 8. Learned counsel for the petitioner further argued that this Court should award some interim compensation to the family of Surjit Singh. In support of his argument, the learned counsel referred to a couple of decisions of the Supreme Court reported as Punjab & Haryana High Court Bar Association v. The State of Punjab and others, 1996(3) RCR(Criminal) 773 : Civil Appeal No. 7243 of 1993, decided on 10.5.1996 and Prakash Kaur Gurmit Kaur v. State of Punjab and others, 1996(3) RCR(Crl.) 773 (SC) : W.P. (Crl.) No. 351/93, decided on 6.12.1996 and also a judgment of this Court in Preeti Thapar v. State of Punjab and others, 2004(3) RCR(Crl.) 495 (P&H) : 2004 Crl. L.J. 3722, to argue that in similar circumstances, the Apex Court as well as this Court has awarded compensation to the family of the victims. L.J. 3722, to argue that in similar circumstances, the Apex Court as well as this Court has awarded compensation to the family of the victims. In Punjab & Haryana High Court Bar Associations case (supra), the Apex Court referred to its following observations made in Nilabati Behera v. State of Orissa, 1994(1) RCR(Crl.) 18 (SC) : (1993)2 SCC 746 :- "It follows that a claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to constitutional remedy provided for the enforcement of a fundamental right is distinct from, and in addition to, the remedy in private law for damages for the tort resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution. This is what was indicated in Pudul Sah and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226 of the Constitution, for contravention of fundamental rights. We respectfully concur with the view that the Court is not helpless and the wide powers given to this Court by Article 32, which itself is a fundamental right, imposes a constitutional obligation on this Court to forge such new tools, which may be necessary for doing complete justice and enforcing the fundamental rights guaranteed in the Constitution, which enable the award of monetary compensation in appropriate cases, where that is the only mode of redress available. The power available to this Court under Article 142 is also an enabling provision in this behalf. The power available to this Court under Article 142 is also an enabling provision in this behalf. The contrary view would not merely render the Court powerless and the constitutional guarantee a mirage, but may, in certain situation, be an incentive to extinguish life, if for the extreme contravention the Court is powerless to grant any relief against the State, except by punishment of the wrongdoer for the resulting offence, and recovery of damages under private law, by the ordinary process. If the guarantee that deprivation of the life and personal liberty cannot be made except in accordance with law, is to be real, the enforcement of the right in case of every contravention must also be possible in the constitutional scheme, the mode of redress being that which is appropriate in the facts of each case. This remedy in public law has to be more readily available when invoked by the have-nots, who are not possessed of the wherewithal for enforcement of their rights in private law, even though its exercise is to be tampered by judicial restraint to avoid circumvention of private law remedies, where more appropriate. We may also refer to Article 9(5) of the International Covenant on Civil and Political Rights, 1966 which indicates that an enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right. Article 9(5) reads as under :- "Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation." 9. Having considered the facts and circumstances of this case in the light of the above observations of the Apex Court, I deem it appropriate to direct the State of Punjab to pay a sum of Rs. 1.50 lacs (Rupees One Lac Fifty Thousand only) as compensation to the petitioner and her family as custodial disappearance of petitioners husband, is purely attributable to the remissness and failure of duty on the part of the police department and moreover, till date the police has not been able to find out the whereabouts of petitioners disappeared husband. In case, the police officers/officials are convicted on the basis of the charge-sheet submitted by the Central Bureau of Investigation, the amount of compensation may be recoverable from them. Petition stands disposed of.