VINOD KUMAR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) ON 5.3.1994, under the orders of the Hon'ble Chief Justice, Criminal Misc. No. 3546 of 1994 in Criminal Misc. No. 3052 -M of 1994 was put up at my residence. Vinod Kumar, petitioner, had appeared in person and in his application, he had submitted that because of dispute between the S.S.P. of Ludhiana, Mr. Sumedh Singh Saini, and proprietors of M/s Saini Motors, who are closely related, the petitioner had been dragged unnecessarily and he apprehended that in case he visited Ludhiana without proper police protection, he would be taken into custody despite the orders of this Court and would be severely beaten up or even liquidated. He also stated that his father had expired that day, i.e. 5.3.1994, but because of fear, he could not perform the last rites of his father. He further submitted that his brother, Ashish Kumar, was taken into custody on 24.2.1994, and on 25.2.1994 an application was moved, before the Chief Judicial Magistrate/Duty Magistrate, Ludhiana, for production of Ashish Kumar, but the police did not bother to put in appearance on 26.2.1994 and 27.2.1994, and it was only on 28.2.1994 that the Chief Judicial Magistrate, Ludhiana, directed the police to send a report by 1.3.1994. Report was filed on behalf of S.H.O. P.S. Focal Point, Ludhiana, that Ashish Kumar was not in their custody. However, on 3.3.1994, Ashish Kumar was produced in the court of Chief Judicial Magistrate, Ludhiana, as an accused in the same very F.I.R. in which the police had stated that Ashish Kumar was not in their custody. Since the allegations made by the petitioner were very serious in nature and deserved to be probed into and also that petitioner had sought protection, a direction was issued to the Inspector General of Police, Chandigarh to provide adequate police protection, with an advance information to the police authorities at Ludhiana that order of this Court whereby anticipatory bail was allowed by R.K. Nehru, J. be strictly followed and no departure be made. The Chief Judicial Magistrate, Ludhiana was directed to pass orders, releasing Ashish Kumar on bail on his furnishing personal bonds in the sum of Rs. 10,000/ -. Mr. S.S. Saini, S.S.P. Ludhiana was asked to be present in Court on 9.3.1994 to answer the allegations made in the petition. Despite order dated 5.3.1994, Mr. S.S. Saini was not present in Court on 9.3.1994. The Assistant Advocate General, Punjab, on the instructions of Mr. S.S. Sandhu, S.P.(City) Ludhiana made statement that Mr. S.S. Saini, SSP, had proceeded on leave in the afternoon of 6.3.1994. In the meanwhile, another application dated 8.3.1994 had also been filed on which notice had been issued for 9.3.1994 in which Vinod Kumar had submitted that after performing the last rites of his father when he came to Chandigarh along with two security -guards provided by the Chandigarh Police, he made a call to his residence at Ludhiana on which he came to know that in his absence the police had raided his house, beat up all male members and took away Promod Kumar, brother of Vinod Kumar, Sh. Ali, Orderly of Vinod Kumar's brother -in -law, Mukhtiar Singh, Vinod Kumar's driver and Vinod Kumar's brother's servant. Rajinder son of Sohan Lal, brother -in -law of Vinod Kumar, who had stood surety for the bail of Ashish Kumar was also taken away by the police. The allegations made in the application as well as affidavits filed by Vinod Kumar, were so serious in nature that it appeared to the Court that Mr. Sumedh Singh Saini, SSP, Ludhiana and the officers working under him at Ludhiana had no respect for the orders of this Court. Therefore, this Court issued show -cause notice to Mr. Sumedh Singh Saini, SSP, and Paramjit Singh, SHO, Ludhiana is to why they be not proceeded against under the Contempt of Courts Act. Since Mr. Saini had not appeared in response to order of this Court, bailable warrants in the sum of Rs. 10,000/ - were ordered to be issued for securing his presence.

(2.) ON 11.3.1994, Mr. Sumedh Singh Saini, SSP, presented a petition at my residence for cancellation of anticipatory bail granted to Vinod Kumar. Mr. Saini stated that Vinod Kumar may be allowed to be arrested in case registered against him. Prayer was not accepted and the matter was adjourned to 15.3.1994. On 15.3.94, anticipatory bail earlier granted to Vinod Kumar in case FIR No. 22/22.2.1994 was confirmed. Ashish Kumar and Vinod Kumar were also allowed anticipatory bail in case, FIR No. 44 dated 10.3.1994. In view of serious allegations regarding illegal custody of Ashish Kumar from 24.2.1994 to 2.3.1994; keeping him in police custody despite the order of the Court remanding him to judicial custody and further illegally taking into custody Promod Kumar, Sh. Ali, Mukhtiar Singh, Vinod Kumar's brother's servant and Vinod Kumar's brother -in -law and Rajinder, this Court appointed District and Sessions Judge (Vigilance) Haryana to go into the allegations and submit his report to the High Court within two months. The contempt proceedings initiated against Sumedh Singh Saini, SSP, and Paramjit Singh, SHO, were kept in abeyance till receipt of report from the District and Sessions Judge (Vigilance) Haryana. The security earlier provided to Vinod Kumar by Chandigarh Police under orders of this Court was ordered to be withdrawn and an intimation to this effect was sent to I.C. Police, Chandigarh. On the very next day, i.e. on 16.3.1994, Ashish Kumar filed Crl. Misc. No.4035 of 1994, stating that in retaliation of orders granting anticipatory bail by this Court, the police at Ludhiana under the orders of Sumedh Singh Saini, SSP. SS. Sandhu, SP; and Paramjit Singh have kidnapped Vinod Kumar, Ashok Kumar and Mukhtiar Singh and he apprehended that they would be liquidated. Notice of the application was given to the Advocate General, Punjab. Mr. G.K. Chatrath, the then Advocate General, Punjab, in response to notice, appeared and stated that the said persons are not in custody of the police. This application was treated as Habeas Corpus Petition and a direction was issued to the State of Punjab through Advocate General, Punjab, for tracing out the missing persons. Thereafter, the case was adjourned from time to time at the request of the State. On 21.3.1994, report of one Kultar Singh, SP, Headquarters was filed. Since the State with the police force at its command had failed to trace out the missing persons and was also not in a position to provide satisfactory answers to the queries put by the Court, I decided to entrust the matter to the Central Bureau of Investigation for thorough and detailed investigation. The enquiry which was earlier entrusted to the District and Sessions Judge (Vigilance) Haryana, was withdrawn. The investigation had been entrusted to the C.B.I, with the expectation that keeping in view the allegations made against top police officials of the State, it would act with speed, but the CBI submitted its report on 25.8.1995, i.e. almost after a year and half and that too after the CBI Special Director had appeared in Court on 18.5.1995 in response to notice of this Court, to explain the delay in submitting the report. The C.B.I, conducted investigation on the following three allegations :

(3.) THE matter came to be revived on 7.12.1995 when Criminal Misc.No. 20907 of 1995 was filed by Harjinder Kaur wife of Mukhtiar Singh, a minor son and two minor daughters, stating that they have not received the amount of ex -gratia payment and, therefore, the same may be directed to be released to them. When this application came up before me, notice of the same was issued to the counsel for CBI as well as the State of Punjab for 13.12.1995. On 13.12.1995, I enquired from the counsel for the applicant with regard to filing of challan by C.B.I. and according of sanction Under Section 197 Cr.P.C. by the Government. Mr. Rajive Bhalla, counsel for the applicants, submitted at the Bar that neither sanction Under Section 197 Cr.P.C. had been accorded by the Government nor the challan had been filed by the CBI. I felt quite disturbed. The Deputy Advocate General, Punjab and counsel for the CBI were directed to place on record the information with regard to according of sanction Under Section 197 Cr.P.C. and filing of challan. The case was adjourned to 19.12.1995. On the adjourned date, Mr. M.L. Sarin, Advocate General, Punjab, produced the file. On going through the file, I found that though on 14.9.1995 the CBI was asked to file challan within one month and the State Government was asked to accord sanction forthwith, the C.B.I. asked the Government only on 18/20.10.1995, i.e. much after one month of the passing of order to accord sanction. Sanction order produced by Mr. Sarin showed that sanction was accorded only on 18.12.1995, i.e. a day earlier to the date fixed. It was shocking to hear from him that the Government had accorded sanction only after a great persuasion and his personal intervention in the matter. It was disturbing to note that sanction had been accorded only for offences punishable Under Section 120 -B r/w 342, 343 and 365 IPC and not Under Sections 364/302/201 IPC despite the binding of the CBI that three persons, namely, Vinod Kumar, Ashok Kumar and Mukhtiar Singh are no more alive. It also deserves to be mentioned that though the CBI had asked the State to accord sanction Under Section 364 IPC as well, but sanction has been accorded Under Section 365 IPC which is a lesser offence triable by a Magistrate. Therefore, by order dated 19.12.1995, the Director, CBI was asked to explain this aspect of the matter and also to show -cause as to why he be not proceeded against under the Contempt of Courts Act for not filing the challan within one month. The State of Punjab through its Chief Secretary was also directed to place on record by way of an affidavit the cause for delay and the reasons for not according sanction forthwith on receipt of request from the CBI. I had also observed that the Government on the basis of findings of the CBI given in its report, instead of proceeding against these police officials, sat over the matter. The case was adjourned for 22.12.1995, i.e. today. Now a Criminal Misc. Application No. 21771 of 1995 has been filed on behalf of S.S. Saini, DIG (Administration) and the application is supported by an affidavit of S.S. Saini and also the affidavit of Mr. Anupam Gupta, Advocate. Prayer made in the application is for transfer of the case from this Court. In para 9 of the application, the averment made is not only irrelevant and vague, but has also no concern with this Court. In reply, the averments made in paras 9,10 and 11 have been specifically denied and it has been stated that "these allegations are scandalous, contemptuous and a brazen attempt to interfere with the administration of justice. The entire exercise is an attempt to some -how prevent this Hon'ble Court from dealing with this matter. The averments in these paragraphs are intentionally and blatantly contemptuous of this Court. The applicant appears to suffer from a pompous delusion of self righteousness. The application appears to suggest that judicial independence must bow before blackmail. The applicant cannot be permitted to misuse the process of law." The present application appears to be another bid to get the case out of my board. When I have said "another", I mean to say that in the past too, such attempts had been made. One such attempt was when a retinue of Nihangs who are stated to be close to one of the police officials swarmed the Court -room, leaving no space for lawyers and parties concerned. They vacated the court -room when services of C.R.P.F. personnel posted in the High Court were requisitioned. If I correctly remember, this incident was highlighted by Chandigarh Newsline, a local edition of Indian Express, which reads: