PUNJAB AND HARYANA HIGH COURT BAR ASSOCIATIONversusTHE STATE OF PUNJAB AND ORS.

           PUNJAB AND HARYANA HIGH COURT BAR ASSOCIATION                              A
                                  v.
                    THE STATE OF PUNJAB AND ORS.

                                        MAY 10, 1996
                                                                                       B
                      [KULDIP SINGH AND FAIZAN UDDIN, JJ.]


               Indian Penal Code, 1860 :

                Ss.364, 302, 201-Abduction and murder of an advocate, his wife and
         a child-Petition before High Court seeking direction for independent in- C
         quiry--High Court declining to inteifere-Appeai-Directions by this Court to
         CBI to take up the investigation-Report of CB.I. indicating that person
         accused in the case was falsely implicated and naming certain Police Officers
         prima facie responsible for the false implication and suggesting their prosecu-
         tion as also action against D.I.G. Punjab Police for his lack of super- D
         vision-Held, as regards prosecution of the Police Officers, matter to be
         argued before trial court-It would be in the interest of justice to suspend the
         police officers during the course of the trial-171e person falsely implicated
         would be released forthwith and the Government would pay Rs. 2,00,000 to
         him as compensation for sufferings caused to him because of false implica- E
         tion in the case in particular his remaining in jail for a long period-Govern-
         ment would pay Rs. JO, 00, 000 as compensation to the parents of the deceased
         Advocate.

               Constitution of India, 1950:
                                                                                       F
                A1ticle 136-Compensation for murder and false implication of in-
         1_1ocent person in the niurder cas~Abduction and murder of an advocate and
         his family members-On directions by this Court CB.I. submitting its report
.... ·
         indicating that person accused in the case was falsely implicated and naming
         some police officers prima facie responsible for false implication-171is Court G
         directing to pay Rs. 10,00,000 as compensation to parents of deceased advo-
         cate and Rs. 2, 00, 000 to the person falsely implicated in the case-Action to
         be taken against ening police officers.

               Nilabati Behera v. State of Orissa, [1993] 2 SCC 746, relied on.       H
                                              787
    788                    SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7243 of
    1993.

         From the Judgment and Order dated 19.3.93 of the Punjab &
    Haryana High Court in C.W.P. No. 23i6 of 1993.

B        A.N. Jayram, Additional Solicitor General, Dinesh Mathur,
    Navikiran Singh, R. Barra, Sudhir Walia, R.S. Suri C.B. Babu, P. Parmesum
    and Debasis Misra for the Appearing parties.

            The following Order of the Court was delivered :

c         This Court by the order dated December 7, 1993 directed the Central
    Bureau of investigation (CBI) to investigate into the mysterious and most
    tragic abduction and alleged murder of Kulwant Singh, Advocate, his wife
    and their two year old child. This Court noticed the inaction on the part
    of the High Court in the following words:

D             "The High Court was wholly unjustified in closing its eyes and ears
              to the controversy which had shocked the lawyer fraternity in the
              Region. For the reasons best known to it, the High Court became
              wholly oblivious to the patent facts on the record and failed to
              perform the duty entrusted to it under the constitution. After giving
E             our thoughtful consideration to the facts and circumstances of this
              case, we are of the view that the least the High Court could have
              done in this case was to have directed an independent investiga-
              tion/enquiry into the mysterious and most tragic abduction and
              alleged murder of Kulwant Singh Advocate and his family."

F The operative part of the order dated December 7, 1993. was as under:
              "We therefore, direct the CBI to take up the investigation of the
              case F.I.R. No. 10 dated 8.10.1993 under sections 364/302/201,
              I.P.C. and 3/4/5 T.A.D.A. (P) Act, Police Station Rupnagar, Dis-
              trict Ropar with immediate effect. We further direct the Senior
G             Superintendent of Police, Ropar and the Station House Officer,
              Police Station Rupnagar to assist the CBI in conducting the inves-
              tigation. The CBI shall exercise all the powers available to it under
              the Criminal Procedure Code and any other provision of law. The
              State of Punjab through its Home Secretary is further directed to
H             provide all assistance to the CBI in this respect.
             PB,ANDHARYANAHIGH COURTv. STATE                          789

            We direct the Director, CBI to depute a responsible officer to   A
        hold the investigation as directed by us. This may be done within
        one week from the receipt of this order. The CBI shall complete
        the investigation "ithin three months from the date of receipt. of
        this order by the Director and submit its report in accordance
        with law. The proceedings before the Addi. Dist!. & Sessions
                                                                             B
        Judge, Rupar, shall remain stayed till March 31, 1994."

This Court granted extension to the CBI from time to time for the com-
pletion of the investigation. The CBI submitted the final report to this
Co~rt on March 7, 1996 whereunder following actions have been recom-
mended:                                                                      c
        ''(i) Harpreet Singh @ Lucky s/o of Gurmit Singh Saini, r/o vill.
        Bahadurpur, who is presently facing trial in case FIR No 10/93 of
        PS Sadar Ropar in the Designated Court, Nabha has been falsely
        implicated in the case.
                                                                             D
            (ii) SI Avindervir Singh, AS! Darshan Singh, Inspr. Balwant
        Singh and DSP J as pal Singh are p1ima-facie responsible for the
        false implication of Harpreet Singh @ Lucky in the aforesaid ease
        and are liable for prosecution for offences U/s. 193, 194, 211 and
        218 !PC.                                                             E
        (iii) The State Govermnent of Punjab is to be requested for taking
        suitable action against Shri Sanjiv Gupta, DIG, Punjab Police for
        his lack of supervision."

Mr. Navkiran Singil, Advocate, appearing for .the Punjab and Haryana         F
High Court Bar Association has vehemently contended that there is suffi-
cient material on the record t.o prosecute the police officers for the
abduction and murder of Kulwant Singh, Advocate and his family. He has
invited our attention to the following paragraphs from the CBI report:

        "6. Now the question arises, if Harpreet Singh @ Lucky had not       G
        abducted and murdered Kulwant Singh, advocate and his family,
        then what happened to them. The evidence of the family members
        of Kulwant Singh Advocate is there to show that Kulwant Singh
        had talked to PS City, Ropar on telephone at about 9.30 PM on
        25.1.93 and left the house alongwith his wife and son to the said    H
    790                SUPREME COURT REPORTS [1996] SUPP. 2S.C.R.

A         police station for bringing Manjit Kaur and her son who were
          reportedly detained by the police. It is also in their evidence that
          he left the house in his Maruti Car No. DAQ-3804. Certain shop
          keepers/vendors falling enroute from the house of Kulwant Singh
          to PS City Ropar were examined but nobody confirmed that they
          had seen Kulwant Singh, Advocate and his family going to PS City,
B         Ropar in his Maruti Car. It is a fact that Manjit Kaur and her son
          were there in PS City, Ropar on 25.1.93 night, although she and
          her son are denying it. Thus, the only persons viho could enlighten
          us about the visit of Kulwant Singh to PS City, Ropar are either
          the police personnel posted in the PS City Ropar or Manjit Kaur
c         and her son. Several police personnel have been examined but they
          have denied that Advocate Kulwant Singh had visited the police
          Station that night. They have also denied about the detention of
          Smt. Manjit Kaur or her son in the Police Station. Manjit Kaur
          and her son Amarjit Singh @ Sonu, who arc the only key witnesses
          in this case, have also changed their versions and denied having
D
          been ever detained by the police in the PS City, Ropar. Smt. Manjit
          Kaur is now maintaining that she was never detained by the police
          and she has also made a statement before the Special Magistrate,
          Patiala on 3.7.95 U/s. 164 Cr. P.C. stating therein that she was not
          detained by the police during 25.1.93 to 27.1.93. Her eldest son
E         Inderjit Singh @ Lucky has been appointed as a Special Police
          Officer by Ropar Police w.e.f. 21.8.94 without taking any applica-
          tion from him and he is working in PS Sadar Ropar under Shri
          Avindervir Singh, SHO. Village Budha Bhora to which Smt. Manjit
          Kaur belongs falls under the jurisdiction of PS Sadar, Ropar. It
          appears that the version of Manjit Kaur and her son is not reliable
F
          and Manjit Kaur seems to have made the statement before the
          Magistrate under certain extraneous pressure.

          7. A very significant fact that remains unexplained is the recovery
          of the car by the police from the Bhakra Canal on 12.2.93. If Lucky
G         was innocent and was not involved in the crime, he could not have
          known where the car was. It is in the evidence of family members
          of Kulwant Singh that Kulwant Singh and his family had gone to
          PS City, Ropar on 25.1.93 in the said car allegedly recovered from
          Bhakra Canal on 12.2.93. As per the records prepared by Avinder-
H         vir Singh, SHO be had recovered this car at the instance of
      PB.ANDHARYANAHIGH COURTv. STATE                             791

 Harpreet Singh @ Lucky. Now question arises as to how he could          A
 recover the car if Lucky was innocent and was not involved in the
 crime. Thus, the recovery of the car by the police, false implication
 of Harpreet Singh @ Lucky subsequent payment of money to his
 father under a false name showing him as an SPO and appointment
 of Inderjit Singh @ Lucky, as an SPO during the investigation of        B
 this case possibly to keep a control on him, his mother Manjit Kaur
 and his brother Amarjit Singh@ Sonu and subsequent denial by
 Manjit Kaur and her son about their detention by the police does
 point the finger suspicion at the police but these circumstances
 are not clinching in nature.
                                                                         c
8. The recovery of the car of Advocate Kulwant Singh was made
by SI Avindervir Singh which obviously could have been done on
the basis of certain information available with him which shows his
personal knowledge about the occurrence. Otherwise he could not
have known that the car was thrown into the canal. This is a D
circumstance against Avindervir Singh. The dead bodies of Kul-
want Singh, Advocate and his family members could not be
recovered inspite of our best efforts. The precise sequence of
events after Advocate Kulwant Singh and his family left their house
on the night of 25.1.93 could also not be established due to the
non-cooperation of Smt. Manjit Kaur and her son Amarjit Singh E
@ Sonu who were the key witnesses in this case. Assuming that
Advocate Kulwant Singh and his family, were killed, there is no
evidence on record regarding the modus.

 9. We have collected adequate evidence to suggest that the police       F
 version to the effect that Kulwant and his family members were
 killed by Harpreet Singh @ Lucky, is not correct. It is proved
 beyond reasonable doubt that Lucky has not killed Kulwant Singh
,and his family members. The confession of Lucky has been falsely
 recorded. The recovery of the car U/s. 27 Evidence Act has been
 falsely shown.                                                          G

10. However, the investigation has not been able to bring forth any
evidence to reveal the persons who have committed the act of
killing of Kulwant Singh and his family members. their dead bodies
have not been found in spite of our best efforts. There is no other H
    792                   SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A            evidence which may connect any of the suspect police officers with
             the kidnapping/killing, howsoever strong the suspicion may be."

    it is no doubt correct that the CBI investigation reveals circumstances
    which do point a finger of suspicion at the police officers but whether the
    circumstances are sufficient to prosecute them for the abduction and
B   murder of Kulwant Singh and his family is a matter for the consideration
    of the Designated Court which is seized of the trial. We do not wish to go
    into this question. The appellant before us and the prosecutor shall be al
    liberty to argue before the trial court that the material collected by the CBI
    including its report show that the police officers are prima facie responsible
C   for the abduction and murder of Kulwant Singh and his family and are
    liable for prosecution for offences under the relevant provisions of the
    Indian Penal Code.

          The abduction and murder of Kulwant Singh and his family was the
D most heinous crime against humanity. It has taken a mysterious and an
    extremely shocking turn by the finding of the CBI that Harpreet Singh @
    Lucky has been falsely implicated in the case. The CBI report indicates
    that under pressure from the police and finding no other alternative to save
    his life he agreed to their proposal to accept the murder of Kulwant Singh
    and his family members. Mr. Navkiran Singh has rightly contended that the
E   least this court can do at this stage is to compensate the old parents of
    Kulwant Singh. J.S. Vemra, J. speaking for this Court in Nilabati Behera v.
    State of Orissa, (1993] 2 SCC 746 held as under :

            "It follows that a claim in public law for compensation for con-
F           travention of human rights and fundamental freedoms, the protec-
            tion 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
G           damages for the tort' resulting from the contravention of the
            fundamental right. The defence of sovereign immunity being inap-
            plicable, 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
H           award of monetary compensation for contravention of fundamental
     PB.AND HARYANAHIGH COURTv. STATE                             793

rights guaranteed by the Constitution, when that is the only prac- A
ticable 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
                                                                     B
in Rudul 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,          c
 which itself is a fundamental right, imposes a constitutional obliga-
 tion 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       D
 mode of redress available. 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 con-
  stitutional 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     E
  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 life and personal liberty cannot
  be made except in accordance with law, is to be real, the enforce-
. ment of the right in case of every contravention must also be
                                                                          F
  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 enforce-
  ment of their.rights in private law, even though its exercise is to
  be tempered by judicial restraint to avoid circumvention of private     G
  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 enfor-
ceable right to compensation is not alien to the concept of enfor-        H
    794                   SUPREME COURT REPORTS [1996] SUPP. 2S.C.R.

A            cement of a guaranteed right. Article 9(5) reads as under :

                  "Anyone who has been the victim of unlawful arrest or deten-
                  tion shall have an enforceable right to compensation."

    We direct the Punjab Government through Secretary to Government,
B Home Department to pay a sum of Rs. 10,00,000 (ten lac) to the parents
    (father and mother) of Kulwant Singh, Advocate as compensation. The
    payment shall be made within two months of the receipt of this order.

          Regarding Harpreet Singh @ Lucky the CBI reached the following
C   conclusion:

             "Facts emerging from the investigation lead us unequivocally and
             decisively to conclude that Harprect Singh @ Lucky is not respon-
             sible for the abduction or murder of Kulwant Singh, Advocate and
             his family."
D
         The Police Officers falsely implicated Harpreet Singh @ Lucky in
  the case. We direct that he be released from jail forthwith. We further
  direct the Punjab Government through Secretary to Government, Home
  Department to pay a sum of Rs. 2,00,000 (two lac) to Harpreet Singh@
  Lucky as compensation for the sufferings caused to him because of the
E false implication in the case in particular his remaining in jail for a long
  period. The amount of compensation shall be paid within two months of
  the receipt of this order. We further direct the Home Secretary, State of
  Punjab to provide security if he considers it necessary to Harpreet @
  Lucky. We further direct that in the event of conviction of the police
F officers, the amount of compensation paid to Harpreet @ Lucky shall be
  recovered from them personally.

        We transfer the trial from the Designated Court at Ropar to the
  Designated Court at Chandigarh. The CBI shall file the necessary challan
  in accordance with the Code of Criminal Procedure before the trial court
G at Chandigarh. We direct the trial court to conclude the trial expeditiously
  and preferably within six months of its commencement. We direct the State
  of Punjab through the Home Secretary or any other appropriate authority
  to take up the question of grant of sanction under Section 197, Criminal
  Procedure Code for the prosecution of the police officers immediately and
H take a decision in this respect within one month of the receipt of this order.
                      PB.ANDHARYANAHIGHCOURTv. STATE                          795

               Keeping in view the facts and circumstances highlighted by the CBI    A
        in its report it would be in the interest of justice to suspend the police
    •   officers during the course of the trial. We therefore, direct the Home
        Secretary, State of Punjab to take appropriate action in this respect. We
        accept the recommendation of the CBI regarding Shri Sanjiv Gupta, DIG,
        Punjab Police and direct the Government of Punjab through Secretary to
        Government, Punjab to take suitable action against Shri Gupta in the light   B
        of the findings of the CBI

               The appeal is disposed of.

        R.P.                                                  Appeal disposed of.




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