Vinod Kumar Vs. the State of Punjab and ors. - Court Judgment

V.K. Jhanji, J.

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.

3. The C.B.I, conducted investigation on the following three allegations :

i) Illegal detention of Ashish Kumar by the Ludhiana Police from 24.2.94 to 2.3.94 and also his non-surrender to judicial custody in the evening of 4.3.1994 despite orders of the CJM Ludhiana.

ii) Harassment, physical torture and illegal confinement of the members of the family of Vinod Kumar by Ludhiana Police on 7th and 8th of March, 1994:

iii) Disappearance of Vinod Kumar, Ashish Kumar and Mukhtiar Singh, driver.

As regards the first allegation, the C.B.I, found that the police of P.S. Focal Point headed by SHO Paramjit Singh deliberately and intentionally kept Ashish Kumar at the police station overnight despite the orders of the Court to lodge him in the Central Jain on 4.3.1994 itself. It also found that the justification of the police that because of traffic jam the police personnel could not take Ashish Kumar to jail before 6.00 P.M. was without any basis. The C.B.I, thus, opined that Paramjit Singh, SHO, deliberately did not get Ashish Kumar lodged in the jail in the evening of 4.3.1994 and hence, liable for wrongful confinement. The C.B.I, also found substance in allegations No.2 and 3 and in the ultimate analysis, following conclusion was drawn in paras 90 and 91 of the report:-

'90. Vinod Kumar, Ashok Kumar and Mukhtiar Singh remain untraced so far despite best efforts made by the CBI. The advertisements given in the newspapers and the use of print and electronic media have not yielded any results. The family members of these persons have also not heard from them in last about 17 months. Nor have their dead bodies been recovered. In the circumstances, it can reasonably be concluded that they are no more alive, even though there is no evidence to establish that they have died. Vinod Kumar and Mukhtiar Singh were last seen alive with Shri S.S. Sandhu on the evening of 15.3.94. Inspr. S.C. Tiwari has admitted that Shri SS. Sandhu had come with Vinod Kumar to him at about 8.00 P.K. on 15.3.94, even though the entry in the Rojnamcha contradicts his stand. However, he has recorded in the case diary of FIR No. 44/94 that Vinod Kumar was produced before him by SS Sandhu. Thus, Shri SS Sandhu and Inspr. B.C. Tiwari got inextricably linked up with the subsequent disappearance of Vinod Kumar. As Mukhtiar Singh was with Vinod Kumar all along that evening, it is reasonable to conclude that he also met the same fate as Vinod Kumar. Thus, it can reasonably be concluded that SS Sandhu, SP and B.C. Tiwari, SHO are responsible for causing the disappearance of Vinod Kumar and Mukhtiar Singh. Inspr. Paramjit Singh was present in the High Court premises on the evening of 15.3.94. After the High Court granted anticipatory bail to Vinod Kumar and Ashish Kumar, he gave notice to Vinod Kumar to appear before him on 17.3.94. There was no urgency in the matter and, therefore, issue of notice by Inspr. Paramjit Singh to Vinod Kumar, though legally not invalid, was unusual conduct indicative of a deeper motive. Even though, there is no direct evidence regarding his involvement in the disappearnace of Vinod Kumar, however, in the light of his past conduct in illegally detaining Ashish Kumar (as discussed in Allegation No.(I) and causing harassment to the members of Walia family (as discussed in Allegation No.II), it would not be un-reasonable to conclude that he had acted in furtherance of a larger design. The fact that High Court had issued show-cause notice to him for contempt of Court alongwith Shri SS Saini is also a circumstance which could have led to a grudge against Vinod Kumar etc. As regards Ashok Kumar, being a brother-in-law of Vinod Kumar, he was assisting Walia family in Court matters and in other ways. He stood surety for the bail of Ashish Kumar. It is in evidence that he was chased by a police party in the evening of 15.3.94 from near the house of Vinod Kumar and his whereabouts are not known ever since that time. He was on a scooter at that time which has remained untraced. It, therefore, would be reasonable to conclude that he has met the same fate as Vinod Kumar and Mukhtiar Singh.

91. On the basis of material on record, it is apparent that Shri Saini had personal grudge against the owner of Saini Motors and a number of criminal cases were registered against this firm when Shri Saini was the SSP of Ludhiana district in two spells. It is note-worthy that no such cases were registered against this firm during the tenure of any other SSP. Shri Saini had got registered cases against the owner of M/s Saini Motors and when the financial transactions between M/s Saini Motors and the firms belonging to Walia family came to the notice of Police, during the investigation of the FIR No. 22/94 Ashish Kumar was arrested and efforts were made to arrest Vinod Kumar. Vinod Kumar evaded arrest and approached the High Court and levelled personal allegations against Shri Saini. Bailable warrants of arrest against Shri Saini were issued by the Hon'ble High Court as also the issue of notice for Contempt of Court. S/Shri SS Sandhu, SHO, Paramjit Singh and Inspr. B.C. Tiwari could have acted only on the orders of the SSP Shri Saini as he was closely monitoring the cases against the Walias. In all probability these persons are no more alive, but in the absence of the recovery of their dead bodies or other reliable evidence in this regard, it cannot be established that they have been killed by the police. In the light of the circumstantial evidence on record, it is established that Shri SS Saini, the then SSP Ludhiana; Shri SS Sandhu, SP; BC Tiwari, SHO PS Kotwali and Paramjit Singh, SHO PS Focal Point are responsible for causing the disappearance of Vinod Kumar, Ashok Kumar and Mukhtiar Singh'

On submission of report by the C.B.I., notice was given to the parties and after hearing the counsel for the parties concerned, vide order dated 14.9.95 the CBI was asked to submit challan within one month from the date of order, before the Chief Judicial Magistrate, Ambala, and the State Government was also directed to accord necessary sanction Under Section 197 CR.P.C. when asked by the C.B.I. Ex-gratia payment was also ordered to be made to the wives and children of Ashok Kumar and Mukhtiar Singh, driver.

4. 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:

'ENTER THE BLUE BRIGADE'

There was high drama outside the court-room when the Saini case was listed for hearing, on Monday. A large number of Nihangs, dressed in their colourful robes owing allegiance to Ajit Singh Phoola, evinced keen interest in the case and thronged the area.

Phoola who has had a dubious track of record, is considered close to Sumedh Singh Saini who is under a cloud in the case under hearing. The judge, Justice V.K. Jhanji had been busy in a division bench along with Justice M.S.Liberhan till 2.30 p.m. and the court room was locked from inside. As soon as it opened, the retinue of Nihangs besides others, including a large members of Advocates swarmed in quite the chagrin of the judge. The CRPF was called into make room for entry of the counsels for the parties concerned and the media persons, who were stranded outside due to the rush. The CRPF personnel cleared the court-room of the 'Blue Brigade' and other civilians to enable the court to proceed.'

Again, on a day when I was sitting with Justice M.S. Liberhan in Division Bench, the then Advocate General, Punjab, Mr. G.K. Chatrath, came rushing to the court-room and interrupted the court-proceedings and submitted that he has some important information to pass on in regard to the matter being heard by me in Single Bench. When I asked him to give information in open Court, he stated that it being a sensitive matter, he would like to convey it in Chamber. When we retired to the Chamber, he came along with Mr. S. Chattopadhaya, A.I.G. of Police, Punjab, and said that the A.I.G. of Police, Punjab has some definite information that I should be careful as there is some danger to my life. A similar exercise was conducted in court case No. 1 where my Lord the Chief Justice was sitting in Division Bench. His Lordship was also made to retire to Chamber along with the Companion Judge and the information which had been conveyed to me earlier, was repeated to His Lordship. Not only this, after the assassination of S.Beant Singh, Chief Minister, Punjab, two-three articles written by Mr. Anupam Gupta, Advocate for Mr. S.S. Saini had appeared in The Tribune and one had to read between the lines to find that it was a crude and brazen attempt to over-awe this Court as it had ordered investigation by the CBI. During this time, I had also been receiving anonymous telephone calls threatening to wash away my hands from this case and one such caller had gone to the extent of saying that I would be picked up and thrown in furnace like the three had been thrown along with their car and scooter. I had brought all these facts to the notice of My Lord the Chief Justice in presence of my brother Judges. The modus-operandi thus, had been to create fear psychosis. The present application has come to be filed only when this Court did not deter from proceeding with the case.

5. Order dated 19.12.1995 had been passed because time and again the Apex Court had noticed that protection guaranteed to the citizens of India under Article 21 of the Constitution of India is being rendered negatory by indiscriminate acts of the police. My Lord, the Chief Justice of India in Inder Singh v. State of Punjab, (1995) 3 SCC 702, has observed ' This Court has in recent times come across far too many instances where the police have acted not to uphold the law and protect the citizen but in aid of a private cause and to oppress the citizen. It is a trend that bodies ill for the country and it must be promptly checked.' Hon'ble Faizan Uddin, J, in Dhananjay Sharma v. State of Haryana, (1995)3 SCC 757, has observed 'It is in common knowledge that in recent times our administrative system is passing through a most critical phase, particularly, the policing system which is not as effective as it ought to be and unless some practical correctional steps and measures are taken without further delay, the danger looms large when the whole orderly society may be in jeopardy. It would, indeed, be a sad day if the general public starts entertaining an impression that the police force does not exist for the protection of society's benefits but it operates mainly for its own benefit and once such an impression comes to prevail, it would lead to disastrous consequences.' Time and again, it has been argued in Court that the police officials who have been found responsible for the disappearance of three persons, are innocent. What about those three persons who have disappeared in thin air?. They had also not been found guilty by any Court. The fact remains that till date neither the Punjab Police nor the C.B.I. has been able to provide any clue with regard to their whereabouts. The responsibility to maintain the rule of law lies on all individuals and institutions including the State. The State is not absolved of its duty only by making payment of ex-gratia amount to the families of the victims, but is also under a constitutional mandate to take action against the erring police officials in accordance with law. The State is answerable to the wive and children of the victims who were their only bread-earners. This Court had felt helpless as and when the children and ladies of the victims had come to the Court to witness the proceedings with the expectation that some information would be given with regard to existence of their disappeared ones or they would get some effective order from this Court. As regards the affidavit filed by Mr. Anupam Gupta, Advocate in support of application, I wish to reiterate the observations of P.B. Sawant, J in Sanjiv Datta, (1995) 3 SCC 619:

'The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by its members by their exemplary conduct both in and outside the Court. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilised society. Both as a leading member of the intelligentsia of the society and as a responsible citizen, the lawyer has to conduct himself as a model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behaviour.... If the profession is to survive, the judicial system has to be vitalised. No service will be too small in making the system efficient, effective and credible.'

6. The question thus, remains to be decided is what this Court should do in these circumstances. Counsel for the families of victims though had contended that proceedings under the Contempt of Courts Act be initiated against Sh. S.S. Saini and also Mr. Anupam Gupta, Advocate who has filed affidavit in support of the application, but I do not propose to pass any order in furtherance of my order dated 19.12.1995 or to proceed against them under the Contempt of Courts Act and I would leave it to the petitioners to seek appropriate direction in all regards from the Hon'ble Supreme Court of India as in the reply, it has come that the State of Punjab has filed S.L.P. impugning the order dated 14.9.1995 of this Court. Ashish Kumar too has filed S.L.P. and writ Petition as, well as a Caveat, and a mention is likely to be made to the Hon'ble Chief Justice of India in the first week of January, 1996 for listing of the S.L.P.

7. Pursuant to order dated 19.12.1995, affidavits have been filed by the State of Punjab as well as by C.B.I.

8. Before concluding, I wish to comment that the Constitution has entrusted the task of administering law to the Judiciary whose view on the subject is final and binding on all till it is changed by Higher Court. Court's verdict has to be respected not by the authority of its reason but always by reason of its authority, regardless of the fact that it may cause hardship to a particular party.

9. The matter is adjourned sine-die and shall be taken up as and when an order in this regard is received from the Hon'ble Supreme Court. Order Dasti on payment.