SUMEDH SINGH SAINI Vs. STATE OF PUNJAB

JUDGEMENT

(1.) "Between malice in fact and malice in law, there is a broad distinction which is not peculiar to any particular system of jurisprudence. A person who inflicts an injury upon another person in contravention of law is not allowed to say that he did so with an innocent mind, he is taken to know the law and he must act within the law. He may therefore be guilty of malice in law, although so far as the state of his mind is concerned, he acts ignorantly and in that sense innocently." were the famous lines in Shearer V Shields and rather aptly applies to this Civil Writ Petition filed by the present petitioner, a former Director General of Police of Punjab Police, whereby he has sought invocation of Articles 226, 227 of the Constitution of India to hold that:-

(2.) The concise background of the instant case is that one Balwant Singh Multani (referred to as 'deceased'), a Junior Engineer with Chandigarh Industrial and Tourism Development Corporation Limited (CITCO) living in Mohali, son of a senior IAS officer of Punjab, was taken away illegally by the Chandigarh Police on early morning of 11.12.1991. At that time, petitioner happened to be the Senior Superintendent of Police of Chandigarh. The family adopted all recourses of law but to no avail. The deceased was subsequently shown to have been arrested in case FIR No.440 dated 13.12.1991 under Sections 212, 216 IPC; Section 25 of the Arms Act, and Sections 3 and 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 pertaining to Police Station Sector 17, Chandigarh and inhumanly/barbarically tortured. Thereafter, the deceased was shown deceptively to have been taken to Quadian, District Batala where he is claimed to have escaped in spite of heavy Police and paramilitary forces. Since then, the deceased was not heard of nor his body found and presumed to have been eliminated. The father, with valiant efforts, got an FIR bearing No.RC51/08(S)0010 dated 02.07.2008 registered under Sections 364, 343, 330, 167, 193, 120-B IPC P.S. CBI/SSC/CHG. However, the Supreme Court vide orders dated 07.12.2011 quashed the said FIR but passed the following orders :-

(3.) It is in pursuance of this order the brother of deceased, present complainant Palwinder Singh stepped into the shoes of his deceased father and got the present FIR bearing no.77 dated 06.05.2020 registered under Sections 364, 201, 344, 330, 219, 120-B IPC pertaining to Police Station Mataur, District S.A.S. Nagar (Mohali) against the petitioner and other police officials in which subsequently offence under Section 302 IPC too was added when sufficient evidence had come about in the investigations. It is against this case the petitioner accused has filed this instant petition. The Coordinate Bench vide orders dated 19.08.2020 at the initial hearing before issuing notice of motion, posed the question of maintainability of the petition upon which arguments have been heard from petitioner's side.