1. R. S. Sodhi, Advocate V. State Of U. P.
1994-(081)-AIR -0038 -SC
1994-(100)-CRLJ -0111 -SC
1994-(SU1)-SCC -0143 -SC
ORDER
1. This writ petition brought under Article 32 of the Constitution
concerns the incident which had taken place at Pilibhit on September
12/13, 1991 in which 10 persons were reported to have been killed
in what were described as 'encounters' between the Punjab Militants
and the local police. The news item in connection therewith appeared
in The Times of India on the basis whereof the petition was filed.
The issue was raised in the Parliament and teams of MPs belonging
to the Congress(I) and BJP also visited the places of occurrence
to make an on-the-spot inquiry. Their reports are on record. We
have also perused the report of the ACJM, Pilibhit in which it
is pointed out that the identity of the persons killed in the
encounters was not correctly stated. The investigation in regard
to the incident was handed over to an officer of the Inspector
General's level and we are told that the local police officers
suspected to be concerned with the incidents were also transferred
to enable the officer to carry on the inquiry unhindered. Subsequently,
the State Government also appointed a one-member commission headed
by a sitting judge of the Allahabad High Court to inquire into
the matter but it appears that in some writ petition filed in
the High Court of Allahabad (Lucknow Bench) a stay has been granted
restraining the commission from functioning. Be that as it may,
the fact remains that three incidents in which as many as 10 lives
(now stated to be eleven) were lost had admittedly taken place
and the need for an independent investigation can hardly be disputed.
Since the local police was involved in the said encounters, a
request has been made that an independent agency may be asked
to inquire/investigate into the matter in accordance with the
Code of Criminal Procedure with a view to bringing the offenders,
if any, to book. Mr. Sodhi contends that the investigation may
be directed to be carried out by the Central Bureau of Investigation
having regard to the fact that the accusations are levelled against
the local police. He points out that even the State Government
has seen the need for inquiry by an independent commission. As
against this the learned counsel for the respondent-State submits
that the State Government has taken prompt action in the matter
by appointing a high level officer to inquire into the incidents
and by promptly transferring the concerned local police so that
there may be no possibility of any tampering or interference by
them. He further points out that the State Government has also
taken the next step of appointing a commission headed by a sitting
High Court Judge to probe the incidents and to arrive at the truth
and hence there is no need for directing the Central Bureau of
Investigation to investigate into the matter. In support of this
contention he invited our attention to the observations made by
this Court in Chaitanya Kalbagh v. State of U. P. ((1989) 2 SCC
314 : 1989 SCC (Cri) 363). In that case this Court observed that
in the facts and circumstances presented before it there was an
imperative need of ensuring that the guardians of law and order
do in fact observe the code of discipline expected of them and
that they function strictly as the protectors of innocent citizens.
This Court refrained from saying anything further in the matter
so that no prejudice is caused to anyone in the course of the
inquiry/investigation that may be undertaken. Counsel emphasised
that once the State Government has shown its bona fides by taking
prompt action in the matter it must be left to the State Government
to complete its function under the Code of Criminal Procedure
without any interference from outside agency. Emphasis was laid
on the observation that matters which properly fall within the
domain of the State Government should be left to that Government
and that Government should be petitioned first before any interference
by the court is called for.
2. We have examined the facts and circumstances leading to the
filing of the petition and the events that have taken place after
the so-called encounters. Whether the loss of lives was on account
of a genuine or a fake encounter is a matter which has to be inquired
into and investigated closely. We, however, refrain from making
any observation in that behalf; we should, therefore, not be understood
even remotely to be expressing any view thereon one way or the
other. We have perused the events that have taken place since
the incidents but we are refraining from entering upon the details
thereof lest it may prejudice any party but we think that since
the accusations are directed against the local police personnel
it would be desirable to entrust the investigation to an independent
agency like the Central Bureau of Investigation so that all concerned
including the relatives of the deceased may feel assured that
an independent agency is looking into the matter and that would
lend the final outcome of the investigation credibility. However
faithfully the local police may carry out the investigation, the
same will lack credibility since the allegations are against them.
It is only with that in mind that we having thought it both advisable
and desirable as well as in the interest of justice to entrust
the investigation to the Central Bureau of Investigation forthwith
and we do hope that it would complete the investigation at an
early date so that those involved in the occurrences, one way
or the other, may be brought to book. We direct accordingly. In
so ordering we mean no reflection on the credibility of either
the local police or the State Government but we have been guided
by the larger requirements of justice. The writ petition and the
review petition stand disposed of by this order.
2. People's Union For Civil Liberties (Pucl) V. Union Of India;1995-(SU2)-SCC
-0572
Constitution of India - Arts. 32 & 21 - PIL - Alleged Killing
of two person by police in fake encounter - Allegation denied
by Govt. - In view of the disputed facts District and Sessions
Judge directed to conduct enquiry and report to Supreme Court
within six months.
JUDGMENT
B. P JEEVAN REDDY, J. - This writ petition under Article 32 of
the Constitution is filed by the People's Union for Civil Liberties
(PUCL) for the issuance of an appropriate direction institution
a judicial inquiry to inquire into the incidents mentioned in
the writ petition and to further direct the respondents (Union
of India and State of Manipur) to take action against the erring
police officers. A direction for awarding compensation to the
members of the family of the victims has been sought.
some hardcore leaders of the Hamar People's Convention (HPC) were
camping at Lunthilian Village, they rushed to the village on 3-4-1991
and that when they reached the village at about 11.00 p.m. on
that day, they were fired upon by the members of the HPC. It was
alleged that in the exchange of fire, the two aforesaid persons
died while three others were apprehended. It was also stated that
the police recovered a. 22 country revolver with seven rounds
of ammunition, a cash amount of Rs. 1213 and a large number of
incriminating documents. It is stated by the petitioner in the
writ petition that the above version of the police is strongly
denied by the relatives of the said deceased persons. According
to them, no encounter as such took place in the village and not
a single shot was fired. According to them, the said two deceased
persons were taken away by police and killed in a cold-blooded
manner and that this version is corroborated by villagers who
were present when the said persons were taken away and also from
the various reports appearing in the local and national media.
According to the petitioner further the true case is that the
police came to the village at about 9.30 p.m. on that day and
took away five persons including the two deceased. They took away
the Chairman of the village also with them, but he was let off
on the outskirts of the village. Remaining five persons were taken
away in a truck after blindfolding them. At about 2.00 p.m. on
4-4-1991, i.e., after travelling for about 16 hours and after
crossing the Lanva Bridge which is about 5 kms from Churachandpur,
the two deceased were called by the police and taken away from
the truck. They were taken to some distance and shot there. The
remaining three persons in the truck heard the gunshots. Subsequently,
the dead bodies were dumped in the truck and taken to Imphal where
the other three persons were kept in Imphal Police Station for
four days. Then they were taken to Churachandpur Police Station
and were kept there for about 9 days. They were then brought back
to Imphal Police Station and lodged in Imphal Central Jail. Ten
days later they were taken to Mizoram where they were released
on bail on 22-7-1991. The affidavits of two of the said three
persons, viz., Remthang and Lalsansuot, sworn before the Judicial
Magistrate, Class I on 20-8-1991 are filed along with the writ
petition. Affidavits of villagers and wives of the deceased are
also filed in support of the above version. The writ petition
then sets out, what it calls, the serious lacunae, irregularities
and inconsistencies in the version put forward by the police,
vide para 7 of the writ petition.
3. On 13-11-1992 this Court issued notice to the respondents in
this writ petition returnable within six weeks. A counter-affidavit
has been filed on behalf of the second respondent (State of Manipur)
sworn to by Shri Kh. Mohendro Singh, Joint Secretary (Home) Government
of Manipur. He has denied the several averments in the writ petition
and has affirmed the version put forward in the FIR as the true
one. Along with the counter-affidavit, copies of post-mortem reports
relating to the said two deceased persons are filed.
4. A rejoinder has been filed on behalf of the petitioner denying
the averments in the counter-affidavit and reiterating the statements
made in the writ petition. Along with the rejoinder some more
affidavits have been filed.
5. It would be evidence from a perusal of the pleadings that there
is a serious dispute as to relevant facts. One of the aspect stressed
by Shri Rajinder Sachar, learned Senior Advocate for the petitioner
is that according to the post-mortem report filed by the respondents,
not only the entry point of all the bullets is in the back of
the deceased, there is blackening, tattooing and scrooting in
respect of one of the bullet entry points pertaining to Beiklin.
The learned counsel submits that the said circumstances supports
the petitioner's case that the said deceased were shot from behind
and at a close range.
6. The learned counsel for the respondent, however, disputes the
correctness of the said submission.
7. In view of the aforesaid two contradictory versions, we think
it appropriate in the facts and circumstances of the case that
an inquiry be made by the learned District and Sessions Judge,
Churachandpur, State of Manipur into the said incident. The learned
District Judge shall record the evidence of the relevant witnesses
and submit a report to this Court within six months. To enable
the learned District Judge to appreciate the facts of the case
and also to enable him to identify the witnesses to be summoned,
copies of writ petition, counter and rejoinder along with the
enclosed documents and affidavits shall be forwarded to him. The
learned District Judge shall examine the deponents of the said
affidavits, it they are available and willing to come forward
to give evidence, and all such persons as he thinks appropriate
in the circumstances and make his report.
8. It is obvious that before commencing the inquiry, the learned
District Judge shall send notices to the petitioners as well as
the respondents.
9. List after the receipt of the report from the learned District
Judge, Churachandpur, Manipur.
3. Paramjit Kaur (Mrs) V. State Of Punjab: 1996-(007)-SCC -0020
-SC
Constitution of India - Arts. 32 & 21 - Habeas corpus petition
- Police excesses - Kidnapping by police of human right activist
who had made startling discoveries about thousands of persons
who, it is believed, were liquidated by the Punjab Police and
their bodies disposed of as unclaimed/unidentified - Director,
CBI was directed to appoint a high-powered team to investigate
into the facts and all the authorities concerned of the State
of Punjab including the Director General of Police, Punjab was
directed to render all assistance to the CBI in the investigation.
ORDER
1. A telegram was received at the residence office of one of us
(Kuldip Singh, J.). This Court on 11-9-1995 passed the following
order :
"The telegram in hand has been received at the residence
office of one of us (Kuldip Singh, J.). The sender of the telegram
is Mr Gurcharan Singh Tohra. It is stated in the telegram that
Sardar Jaswant Singh Khalra, General Secretary, Human Rights Wing
of Shiromani Akali Dal has been kidnapped by the police. We treat
this telegram as a habeas corpus petition and issue notice to
the Home Secretary, Punjab, Director General of Police, Punjab,
and the Senior Superintendent of Police, Amritsar returnable within
one week. Mr Sodhi who is present in Court states that he has
also filed a petition in this Court in this respect. He undertakes
to serve the respondents by dasti process in addition. The Registry
to serve these respondents by telex/telephone or fax."
2. Meanwhile Mrs Paramjit Kaur, wife of Jaswant Singh Khalra also
filed a petition under Article 32 of the Constitution of India
seeking direction in the nature of habeas corpus.
3. It is alleged in the petition that on 6-9-1995 at about 9.20
a.m. while the petitioner's husband J.S. Khalra was washing his
car outside the gate of House No. 8, Kabir Park, Amritsar, a Maruti
Van, sky blue in colour bearing Registration No. BBN-5969, came
and stopped close to the place where Mr Khalra was working. Four
uniformed policemen, with black head-dresses (patkas), and armed
with automatic weapons, jumped out of the Van. They had walkie-talkie
instruments with them. They pointed the weapons at Khalra, mishandled
him despite his protests and pushed him into they Van from the
rear. It is further alleged that the policemen informed through
walkie-talkie to someone presumably their superior that Khalra
had been taken into custody and the job/mission was a success.
The Van was followed by an open police Gypsy wherein 4/5 policemen,
fully armed were standing and an officer was sitting in the front
seat. The Gypsy gave cover to the Maruti Van. It is, thus, alleged
in the petition that Khalra was kidnapped by some persons in police
uniforms at 9.20 a.m. from a busy residential area of Amritsar.
4. It is stated in the petition that Rajeev Singh, son of Shri
Parkash Singh, who was present close by witnessed the kidnapping.
He even tried to intervene but was pushed aside. He managed to
overhear the conversation on walkie-talkie but also noted the
number of the Maruti Van in which Khalra had been taken. It is
further stated that the kidnapping was witnessed by a large number
of neighbours and other persons since it was broad daylight (9.20
a.m.) when people were on the way to their normal vocations. The
petitioner states that while she was going to the university,
where she works, she also noticed the Gypsy with the police personnel
and she would be in a position to recognise some of the persons
standing in the Gypsy.
5. The petition further states that the petitioner along with
friends and relatives went to Police Station Islamabad, sent telegrams
to the Chief Justice of India, Chief Justice of Punjab and Haryana
High Court, Director General of Police, Punjab and various other
authorities. It is stated that they also met Mr D.R. Bhatti, Inspector
General of Police. Para 19 of the writ petition is as under :
"The petitioner firmly believes that her husband has been
picked up at the instance of Ajit Singh Sandhu, SSP, Tarn Taran
Police District, who has on various occasions being threatening
the petitioner's husband with dire consequences if he did not
influence and/or play an active role in getting the writ petitions
withdrawn wherein police excesses, custodial deaths and police
kidnapping were pending enquiries before the High Court and which
Mr Sandhu felt, have been initiated at the instance of Mr J.S.
Khalra. This aspect of the matter has been widely covered in various
press conferences and news items."
6. Counter-affidavit has been filed by Mr Sukhdev Singh Chhinna,
Superintendent of Police, City Amritsar. It is stated by Mr Chhinna
that "a perusal of the police records shows that Shri Jaswant
Singh Khalra ... is neither wanted nor arrested by Amritsar Police
in any criminal case". It is further stated that investigations
are currently in progress and all-out efforts are being made to
trace Jaswant Singh Khalra. The details of the efforts made by
the police are given in paras 5 and 6 of the counter. The counter
further stated as under :
"Shri Ajit Singh Sandhu, PPS, Senior Superintendent of Police,
Tarn Taran, was made to join the investigation on 23-9-1995 with
the object of verifying the allegations regarding his involvement
in the abduction. Accordingly to Shri Sandhu, he was on leave
w.e.f. 5-9-1995 to 11-9-1995. On the day of the incident Shri
Sandhu was in Chandigarh making preparations for the marriage
of his daughter which was solemnized in Chandigarh on 11-9-1995.
Shri Sandhu has stated under oath that he did not threaten the
petitioner's husband at any time nor did he ever influence Shri
Khalra, directly or indirectly, for the withdrawal of writ petitions
etc. which were pending before the High Court for the States of
Punjab and Haryana, concerning police excesses, custodial deaths
and police kidnappings. Shri Sandhu also stated that Shri Khalra
is not a witness against him in any court case."
7. Mr Ajit Singh Sandhu, Senior Superintendent of Police, Tarn
Taran has also filed an affidavit. Para 2 of the affidavit is
as under :
"That I have gone through the contents of the above-mentioned
writ petition and I state that the facts mentioned in Para No.
19 of the petition are not correct. I never threatened the petitioner's
husband at any time nor did I ever influence him directly or indirectly
for the withdrawal of the writ petition etc. which were pending
enquiries before the Hon'ble High Court for the States of Punjab
and Haryana concerning police excesses, custodial deaths and police
kidnappings."
8. The petitioner filed further affidavit dated 9-10-1995 by way
of rejoinder. Paras 4 to 7 of the rejoinder are as under :
"It is incorrect to say that my husband, Mr Khalra, had no
apprehension of his safety prior to his being taken into custody
by mavericks of Punjab Police. On the contrary, my husband had
apprehensions that the SSP Tarn Taran, Ajit Singh Sandhu, positively
threatened my husband which is borne out from a horde of press
clippings as also affidavits which are being filed herewith. Affidavits
on Navkiran Singh, Advocate, Gurcharan Singh Tohra, President,
SGPC, Ranjan Lakhanpal, Advocate, as also Jaspal Singh Dhillon
are being filed and annexed hereto and marked as Annexure 'P-1'
(Colly).
Annexure 'P-2' (Colly) are various reports of the Human Rights
Wing, Shiromani Akali Dal, which state how the Punjab Police and
in particular the police of Tarn Taran District have been indicted
for their excesses in extrajudicial murders.
Annexure 'P-3' (Colly) are the copies of press reports on the
excesses of the Punjab Police and in particular that of Tarn Taran
Police and Mr Ajit Singh Sandhu, respondent herein.
I say that my husband was continuously exposing the black deeds
of the Punjab Police which was a great irritant to them and more
particularly to the Tarn Taran Police headed by Ajit Singh Sandhu,
SSP and, therefore, it is wrong to say that there was no occasion
for Mr Sandhu to feel annoyed."
9. Mr Navkiran Singh, Advocate in his affidavit supporting the
petitioner has stated as under :
"Mr Ajit Singh Sandhu was transferred back to the area of
Tarn Taran as the SSP as it was in his time that the families
of militants were wiped out in extrajudicial killings. Mr Khalra
had informed me that Mr Ajit Singh Sandhu was sending threatening
messages to him. The Tarn Taran Police was specially annoyed for
his reports of unclaimed bodies which had created a flutter in
the police circles and which prompted the State to post back Mr
Sandhu back to Tarn Tarn so that he could influence the witnesses
not to appear as a witness in the enquiries pending with the CBI
and before the Sessions Judge at Amritsar.
Mr Khalra after his visit abroad had started giving press releases
highlighting the police excesses of Tarn Taran Police. The present
SSP Mr Ajit Singh Sandhu also joined the issue with him and held
a press conference in retaliation. Mr Khalra came to me to Chandigarh
and showed me the press release and also discussed with me regarding
filing of a petition in High Court for issuance of a direction
to the State to provide security to him, but he was double minded
for the reason that his asking for security might not demoralise
the victims. It was personally reported by him to me and his other
colleagues that he apprehends harm at the hands of Ajit Singh
Sandhu."
10. Mr Gurcharan Singh Tohra, President, Shiromani Gurdwara Prabandhak
Committee, Amritsar in his affidavit supporting the petitioner
has stated as under :
"That Shri Jaswant Singh Khalra is a General Secretary of
Human Rights Wing of Shiromani Akali Dal and he has played a major
role in the investigation of the 'Unclaimed Dead Bodies' as complied
by the Human Rights Wing in its reports.
That the Police Officers were annoyed with the office-bearers
of the Human Rights Wing for its investigation of the Unclaimed
Dead Bodies and issuance of the reports in the cases of police
excesses. Mr Khalra used to encourage the victims of State excesses
to file petitions in the High Court and Supreme Court. Several
of such petitions are pending in the High Court in which there
are serious allegations against the Tarn Taran Police and most
of these excesses were committed by the Tarn Taran Police under
the command of Mr Ajit Sandhu, SSP.
That Shri Ajit Singh Sandhu, Senior Superintendent of Police,
Tarn Taran, had extended threats to Shri Jaswant Singh Khalra,
General Secretary, Human Rights Wing to stop his activities in
playing a role in exposing the police irregularities ... Our party
has full apprehension that Shri Ajit Singh Sandhu, Senior Superintendent
of Police, Tarn Taran District has abducted Shri Jaswant Singh
Khalra, General Secretary, Human Rights Wing."
11. The affidavits filed by Mr Ranjan Lakhanpal, Advocate and
Shri Jaspal Singh Dhillon supporting the petitioner are in similar
terms. Rajeev Singh has also filed and affidavit supporting the
petition.
12. Copy of the Press Note dated 16-1-1995 issued by the Human
Rights Wing of the Shiromani Akali Dal under the signatures of
Khalra and J.S. Dhillon under the caption "DISAPPEARED &
CREMATION GROUPS" has been annexed along with the rejoinder.
The contents of the Press Note appeared in various newspapers.
Photocopies of the newspaper reports have also been annexed with
the rejoinder.
In Amritsar District the maximum unclaimed bodies brought for
cremation was to the cremation grounds near the Durgiana Mandir.
From 1-6-1984 to the end of 1994 about 2000 bodies have been cremated
as unclaimed. The officials of the Durgiana Mandir cremation grounds
expressed their inability to show any records, but suggested that
details will be available with the Amritsar Registrar of Births
and Deaths. The details which could be gathered at the Registrar's
office are given below.
During the 1st year of the Government of Mr Beant Singh, 300 unclaimed
bodies were brought to the Durgiana Mandir cremation grounds by
the police department. Out of these 300 bodies names of 112 have
been given and the rest were declared as unidentified. 41 persons
have been recorded to have died of bullet injuries or police encounters.
No reason has been recorded for the cause of the death of 259
persons. Post-mortems were conducted only on 24 bodies by the
Amritsar Medical College. No post-mortem was conducted on 276
bodies. 5 bodies of females, as per the record, out of which names
of 3 have been recorded. The details of the 3 female bodies are
: Harpal Kaur, Village Dhulka dated 25-12-1992, Achint Kaur and
companion dated 30-9-1992.
Two bodies are of those of Kashmiris of Sopore, cause of death,
'encounter'. One unclaimed body is from near Chamkaur Saheb, in
Ropar District.
Bhagel Singh alias Gurdarshan Singh of Village Deriwal was nabbed
by the Punjab Police in Bihar. News of his 'arrest' was reported
in the Punjab press. Various organisations in Punjab apprehended
him as being eliminated in a fake encounter. This was around the
last week of November/first week of December 1991. On 19-1-1992
the police knowing fully well the identity of Bhagel Singh and
his village, brought his body of the Durgiana Mandir cremation
grounds for cremation as unidentified and unclaimed.
Mr Piara Singh s/o Shingara Singh, Director of Central Cooperative
Bank in Amritsar, paternal uncle of Harminder Singh Sultanvind
(militant), Mr Piara Singh had gone to a relative's farm in Pilibhit
in Uttar Pradesh. One morning a jeep drove up to the farmhouse,
a team of doctors attired in white coats, sporting stethoscopes
approached the residents of the farm requesting them that a VIP
was coming to the neighbouring village to inaugurate a government
medical clinic and some respectable citizens should also grace
the occasion. They requested Mr Piara Singh to come with them.
Mr Piara Singh ended up at the Durgiana Mandir cremation ground
on 16-12-1992.
Mr Pargat Singh 'Bullet' was undergoing treatment at the Guru
Nanak Hospital, Amritsar. He was abducted by the Raja Sansi Police
and his 'unidentified' body was brought to the Durgiana Mandir
cremation grounds on 5-11-1992."
It is stated in the Press Note that the facts therein were investigation
by Khalra and J.S. Dhillon.
13. On 13-10-1995 Mr M.L. Sarin learned Advocate General for the
State of Punjab, stated that he was personally looking into the
investigation in the case. He sought short adjournment. We adjourned
the hearing to 10-11-1995.
14. Mr Sukhdev Singh Chhinna, Superintendent of Police, City,
Amritsar has filed further affidavit. The contents of the affidavit
are as under :
"That in the matter of the above-mentioned writ petition,
I have made thorough investigations regarding the police officials
whose names were referred to by Mr R.S. Sodhi, Advocate, counsel
for the petitioner. I have checked the Telephone Computer Records,
Logbooks of Vehicles, Wireless Logbooks, Roznamchas of police
stations and other relevant records, pertaining to these officials.
I have also examined and recorded the statements of more than
sixty-five witnesses to verify and account for the presence of
these officials at the time of occurrence, i.e. on 6-9-1995.
That on the basis of the record and the statements of the witnesses
referred to above no inference can be drawn against the said officials
which could implicate them anyway in the matter of the disappearance
of Shri Jaswant Singh Khalra.
That the deponent contacted the petitioner on 7-9-1995, 22-9-1995,
17-10-1995 and 27-10-1995 but set refused to cooperate and stated
that she would do so only after consulting her counsel, Mr R.S.
Sodhi.
That investigations are going on and are being monitored by the
State Police Headquarters.
That all-out efforts are being made to trace the whereabouts of
Shri Jaswant Singh Khalra and to work out this case."
15. The petitioner has filed a further affidavit dated 10-11-1995.
Paras 3, 4, 5, 6, 7, 9, 10 and 12 are as under :
"I say that in spite of giving names of the officers who
were involved in the kidnapping of my husband, my husband still
remains in illegal custody. Except for asking me whether I have
got anything more to say, I have not been asked to help the investigation
in any matter.
I say that my husband had been a staunch crusader of human rights
and had made startling discoveries about thousands of persons
who, it is believed, were liquidated by the Punjab Police and
their bodies disposed of as unclaimed/unidentified. A list of
over 2500 persons, whose bodies have been cremated surreptitiously
in Patti Sub-Division, District Amritsar and Durgiana Mandir,
Amritsar, for the period 1992-94.
I say that in the preliminary investigation into the disappearance
and deaths in the State of Punjab conducted by my husband and
his colleagues, he was able to uncover evidence to the effect
that the police had cremated several thousand bodies as unclaimed/unidentified
between 1992-94. They were also able to obtain with difficulty
records pertaining to cremation grounds at Durgiana Mandir and
Patti Municipal Cremation Grounds.
That the Durgiana Mandir records show that the police has cremated
unclaimed/unidentified bodies whose names, addresses and identification
were very much known.
I say that during the course of his investigation, Mr Jaswant
Singh Khalra also met a lost of people who complained about members
of their family being missing for varying lengths of time; some
for several years. A rough estimate revealed that the number of
such missing persons in Amritsar District alone was not less than
2000.
Mr Ajit Singh Sandhu, the SSP, Tarn Taran Police District, came
to know these activities of Mr Jaswant Singh Khalra and his colleagues.
Presumably fearing that his illegal actions would be brought to
light, he threatened Mr Khalra on several occasions. On one particular
occasion, Mr Sandhu even told Mr Khalra that if he did not desist
from his activities he would wind up on the list of unclaimed/unidentified
bodies cremated by the Punjab Police.
I say that Mr Khalra met Mr Gurcharan Singh Tohra, President,
Shiromani Gurdwara Prabandhak Committee (in short SGPC) shortly
before his disappearance. He also met Justice Ajit Singh Bains,
a retired Judge of the High Court of Punjab and Haryana at the
same time. To both these persons. Mr Khalra revealed the threats
held out to him by Mr Ajit Singh Sandhu, the SSP of Tarn Taran.
A petition seeking protection from the said Shri Ajit Singh was
under consideration/preparation on the date that Mr Khalra disappeared,
i.e. on 6-9-1995. Affidavits affirming these facts have been filed
by both Mr Gurcharan Singh Tohra and Justice Ajit Singh Bains
in the Criminal Writ Petition No. 447 of 1995. These affidavits
as well as others filed in the said writ petition make it clear
that Mr Ajit Singh Sandhu had held out similar threats to the
other members of the team who investigated the cremation ground's
report.
A photocopy of the list of those cremated as unclaimed/unidentified
is annexed hereto and marked as Annexure 'P-1'."
Along with the affidavit and alleged list of persons/bodies which
were allegedly unclaimed and unidentified and stated to be cremated
is given.
16. Mr M.L. Sarin, learned Advocate General, Punjab has very fairly
stated that keeping in view the serious allegations levelled by
the petitioner against the officers/officials of the Punjab Police,
it would be in the interest of justice that the investigation
in this matter be handed over to an independent authority. Even
otherwise, in order to instil confidence in the public mind and
to do justice to the petitioner and his family it would be proper
to withdraw the investigation from Punjab Police in this case.
We, therefore, direct the Director, Central bureau of Investigation
to appoint an investigation team headed by a responsible officer
to hold investigation in the kidnapping and whereabouts of Khalra.
We further direct the Director General of Police, Punjab, all
Punjab Police officers concerned, Home Secretary and Chief Secretary
Punjab to render all assistance and help to the CBI in the investigation.
17. The second issue highlighted in this petition is equally important.
This Court cannot close its eyes to the contents of the Press
Note dated 16-1-1995 stated to be investigated by Khalra and Dhillon.
In case it is found that the facts stated in the Press Note are
correct - even partially - it would be a gory tale of human rights
violations. It is horrifying to visualize that dead bodies of
large number of persons - allegedly thousands - could be cremated
by the police unceremoniously with a label 'unidentified'. Our
faith in democracy and rule of law assures us that nothing of
the type can ever happen in this country but the allegations in
the Press Note - horrendous as they are - need thorough investigation.
We, therefore, direct the Director, Central Bureau of Investigation,
to appoint a high-powered team to investigate into the facts contained
in the Press Note dated 16-1-1995. We direct all the authorities
concerned of the State of Punjab including the Director General
of Police, Punjab to render all assistance to the CBI in the investigation.
All authorities of the Punjab Government shall render all help
and assistance to the CBI team as and when asked by any member
of the said team. We give liberty to the CBI to seek any further
directions from this Court from time to time as may be necessary
during the investigation.
18. The CBI shall complete the investigation regarding kidnapping
of Khalra within three months of the receipt of this order. So
far as the second investigation is concerned we do not fix any
time-limit but direct the CBI to file interim reports regarding
the investigation in this Court after every three months.
19. We further direct the State of Punjab through Home Secretary
and the Director General of Police to transfer Mr Ajit Singh Sandhu,
SSP, Tarn Taran out of the Districts of Tarn Taran and Amritsar.
He shall not be posted in any adjoining district.
4.Nain Kaur And Another, Petitioners; V. State Of J & K And
Others, Respondents.
1996-(003)-SCC -0072 -SC
1996-(083)-AIR -2968 -SC
1996-(102)-CRLJ -1874 -SC
ORDER
1. This petition under Article 32 of the Constitution of India
has been filed for a writ requiring production of Dharamvir Singh,
a practising advocate of Amritsar, before this Court. The two
petitioners are the mother and cousin of Dharamvir respectively.
Their grievance is that even though Dharamvir was on bail in connection
with two cases earlier registered against him and was released
from Central Jail, Jammu on 12-5-1995 consequent upon quashing
of his detention by the High Court of Jammu & Kashmir, he
was taken into custody as soon as he came out of the jail by Sudarshan
Singh, an officer of Pacca Danga Police Station of Jammu city
and since then his whereabouts are not known.
2. Responding to the notice issued on the petition, Mr Pramod
Jain, Special Secretary (Home), Government of Jammu and Kashmir
has filed a counter-affidavit wherein he has admitted that Dharamvir
Singh was released from Central Jail, Jammu on 12-5-1995. In detailing
Dharamvir's subsequent movements, Mr Jain has stated that on 21-5-1995
a nakka was laid in the area of Kharkhola Post near the Indo-Pak
Border under the joint supervision of officials of Border Security
Force (BSF) and local Police Station Ranbir Singh Pura. In course
of an encounter there one person sustained injuries and fell down
dead, while his associates escaped. From the spot one 0.38 mm
pistol with two live rounds and one nozzle were recovered. On
receipt of the report of the above death, an entry was made in
the daily diary of Ranbir Singh Pura Police Station and investigation
under Section 174 CrPC taken up. In course of that investigation
photographs of the dead body were taken, but in spite of best
efforts the identity of the deceased could not be immediately
established, as nobody came forward to claim the dead body. It
was therefore handed over to Jammu & Kashmir Sewa Samiti for
cremation after keeping the same for three days. Mr Jain has further
stated that subsequently a few Sikh gentlemen and a lady came
to the police station and identified, on perusal of the photographs,
clothes and other items seized from the person of the deceased,
that he was Dharamvir. Mr Jain has lastly stated that during the
investigation it was established that Dharamvir was killed in
an encounter with BSF and other members of nukka party while entering
into India from Pakistan. In support of his above statements Mr
Jain has filed the statements recorded during the investigation
under Section 174 CrPC and some other documents.
3. Since the respondents were claiming that the person who allegedly
died in the encounter was Dharamvir, relying on the identification
of some Sikh gentlemen and a lady principally on the basis of
the photograph of a dead body, we enquired of the petitioners
as to whether the photograph was that of Dharamvir. As Petitioner
1. the mother of Dharamvir, emphatically stated it was not of
her son we directed her to produce a photograph of Dharamvir with
a supporting affidavit which she complied with. To pursue the
matter further we tried to requisition the services of Mr R. L.
Chadha, an advocate of Jammu and Kashmir High Court, who according
to the petitioners was present when Dharamvir Singh was brought
out of the Central Jail, Jammu and taken away by the officers
of Pacca Danga Police Station. Mr Chadha, however, did not respond
to our request.
4. Since from a comparison of the photographs, it is difficult
for us to disbelieve the assertion of Petitioner 1 that the dead
body was not that of her son and, for that matter, to accept the
version of the respondents that Dharamvir died in an encounter
we direct the Director of Central Bureau of Investigation to cause
an investigation made into the matter and submit its report within
three months from today.
5.People's Union For Civil Liberties V. Union Of India
1997-(003)-SCC -0433 -SC
1997-(084)-AIR -1203 -SC
ORDER:
B. P. JEEVAN REDDY, J. - People's Union for Civil Liberties has
filed this writ petition under Article 32 of the Constitution
of India for issuance of a writ of mandamus or other appropriate
order or direction (1) to institute a judicial inquiry into the
fake encounter by Imphal Police on 3-4-1991 in which two persons
of Lunthilian Village were killed, (2) to direct appropriate action
to be taken against the erring police officials and (3) to award
compensation to the members of the families of the deceased. According
to the petitioner, there was in truth no encounter but it was
a case where certain villagers were caught by the police during
the night of 3-4-1991, taken in a truck to a distant place and
two of them killed there. It is alleged that three other persons
who were also caught and taken away along with two deceased persons
were kept in police custody for a number of days and taken to
Mizoram. They were released on bail only on 22-7-1991. It is further
submitted that Hamar Peoples' Convention is political party active
in Mizoram. It is not an unlawful organization. Even according
to the news released by the said organization, it was a case of
deliberate killing. Though representations were made to the Chief
Minister of Manipur and other officials, no action was taken.
Along with the writ petition, affidavit of the persons who were
taken into custody along with the deceased, taken in a truck and
kept in custody for a number of days, were filed. Affidavits of
the wives of the deceased were also filed setting out the miserable
condition of their families after the death of their respective
husbands.
2. On notice being given, counter-affidavit was filed by the Joint
Secretary (Home), Government of Manipur denying the allegations.
The allegation of "flake encounter" was denied. It was
submitted that there was genuine cross-firing between the police
and the activists of Hamar Peoples' Convention during which the
said two deaths took place. The report of the Superintendent of
Police, Churachandpur was relied upon in support of the said averment.
It was submitted that Hamar Peoples' Convention was indulging
in illegal and terrorist activities and in acts disturbing the
public order. Particulars of several FIRs issued in respect of
crimes committed by them under different police stations in that
area were set out. The truth and correctness of the supporting
affidavits was also disputed. Along with the counter-affidavit,
copies of post-mortem reports were filed.
3. After hearing the counsel for both parties, this Court directed,
by its order dated 30-5-1995, that the learned District and Sessions
Judge, Churachandpur shall make an inquiry into the alleged incident
and submit his report as to what exactly happened on that day.
Subsequently, that inquiry was entrusted to the learned District
and Sessions Judge, Manipur (West), who has submitted this report
dated 8-4-1996. The learned District and Sessions Judge has concluded
that "there was no encounter in the night between 3-4-1991
and 4-4-1991 at Nungthulien Village. The two deceased, namely,
Lalbeiklien and Saikaplien were shot dead by the police while
in custody on 4-4-1991". The State of Manipur has filed its
objections to the report along with certain documents which according
to them purport to disprove the correctness of finding recorded
by the learned District and Sessions Judge.
4. We have heard the counsel for the parties. We are satisfied
that there are any reasons for not accepting of the learned District
and Sessions Judge which means that the said deceased persons
were taken into custody on the night of 3-4-1991, taken in a truck
to a long distance away and shot there. The question is what are
the reliefs that should be granted in this writ petition ?
5. It is submitted by Ms. S. Janani, the learned counsel for the
State of Manipur, that Manipur is a disturbed area, that there
are several terrorist groups operating in the State, that Hamar
Peoples' Convention is one of such terrorist organizations, that
they have been indulging in a number of crimes affecting the public
order - indeed, affecting the security of the State. It is submitted
that there have regular encounters and exchange of fire between
police and terrorists on a number of occasions. A number of citizens
have suffered at the hands of terrorists and many people have
been killed. The situation is not a normal one. Information was
received by the police that terrorists were gathering in the house
on that night and on the basis of that information, police conducted
the raid. The raiding party was fortunate that the people inside
the house including the deceased did not notice the police, in
which case the police would have suffered serious casualties.
The police party was successful in surprising the terrorists.
There was exchange of fire resulting in the death of the terrorists.
6. In view of the fact that we have accepted the finding recorded
by the learned District and Sessions Judge, it is not possible
to accede to the contention of Ms. Janani insofar as the manner
in which the incident had taken place. It is true that Manipur
is a disturbed area, that there appears to be a good amount of
terrorist activity affecting public order and, may be, even security
of that State. It may also be that under these conditions, certain
additional and unusual powers have to be given to the police to
deal with terrorism. It may be necessary to fight terrorism with
a strong hand which may involve vesting of good amount of discretion
in the police officers or other paramilitary forces engaged in
fighting them. If the version of the police with respect to the
incident in question were true, there could have been no question
of any interference by the court. Nobody can say that the police
should wait till they are shot at. It is for the force on the
spot to decide when to act, how to act and where to act. It is
not for the court to say how the terrorists should be fought.
We cannot be blind to the fact that even after fifty years of
our independence, our territorial integrity is not fully secure.
There are several types of separatist and territorial integrity
is not fully secure. There are several types of separatist and
terrorist activities in several parts of the country. They have
to be subdued. Whether they should be fought politically or be
dealt with by force is a matter of policy for the Government to
determine. The courts may not be the appropriate forum to determine
those questions. All this is beyond dispute. But the present case
appears to be one where two persons along with some others were
just seized from a hut, taken to a long distance away in a truck
and shot there. This type of activity cannot certainly be countenanced
by the courts even in the case of disturbed areas. If the police
had information that terrorists were gathering at a particular
place and if they had surprised them and arrested them, the proper
course for them was to deal with them according to law. "Administrative
liquidation" was certainly not a course open to them.
7. Shri Rajinder Sachar, learned counsel for the petitioner, submits
that in view of the findings of the learned District and Sessions
Judge, this is a proper case where this Court should order the
prosecution of the police officials concerned and also award compensation
to the families of the deceased.
8. In Challa Ramkonda Reddy v. State of A. P. [AIR 1989 AP 235
: (1989) 2 Andh LT 1], a decision of the Division Bench of the
Andhra Pradesh High Court, one of us (B. P. Jeevan Reddy, J.)
dealt with the liability of the State where it deprives a citizen
of his right to life guaranteed by Article 21. It was held :
"In our opinion, the right to life and liberty guaranteed
by Article 21 is so fundamental and basis that no compromise is
possible with this right. It is 'non-negotiable'. .... The State
has no right to take any action which will deprive a citizen of
the enjoyment of this basis right except in accordance with a
law which is reasonable, fair and just."
The decision also dealt with the question whether the plea of
sovereign immunity is available in such a case. The following
observations are relevant :
"The question, however, arises whether it is open to the
State to deprive a citizen of his life and liberty otherwise than
in accordance with the procedure prescribed by a law and yet claim
an immunity on the ground that the said deprivation of life occurred
while the officers of the State were exercising the sovereign
power of the State ?
.... Can the fundamental right to life guaranteed by Article 21
be defeated by pleading the archaic defence of sovereign functions
? Does it mean that the said theory clothes the State with the
right to violate the fundamental right to life and liberty, guaranteed
by Article 21 ? In other words, does the said concept constitute
an exception to article 21 ? We think not. Article 21 does not
recognize any exception, and no such exception can be read into
it by reference to clause (1) of Article 300. Where a citizen
has been deprived of his life, or liberty, otherwise than in accordance
with the procedure prescribed by law, it is no answer to say that
the said deprivation was brought about while the officials of
the State were acting in discharge of the sovereign functions
of the State."
9. Reliance was placed in the said decision upon the decision
of the Privy Council in Maharaj v. Attorney General of Trinidad
and Tobago [(1978) 2 All ER 670 : (1978) 2 WLR 902 : 1979 AC 385,
PC]. After setting out the relevant provisions of the Constitution
of Trininad and Tobago, it was pointed out that Section (1) of
that Constitution corresponds inter alia to Section 21 of our
Constitution, while Section 2 and Section 6 of that Constitution
correspond to Articles 13 and 32/226 of our Constitution. Applying
the reasoning of the Privy Council, it was held by the High Court
:
"The fundamental rights are sacrosanct. They have been variously
described as basis, inalienable and indefeasible. The founding-fathers
incorporated the exceptions in the articles themselves - wherever
they were found advisable, or appropriate. No such exception has
been incorporated in Article 21, and we are not prepared to read
the archaic concept of immunity of sovereign functions, incorporated
in Article 300(1), as an exception to Article 21. True it is that
the Constitution must be read as an integrated whole; but, since
the right guaranteed by Article 21 is too fundamental and basis
to admit of any compromise, we are not prepared to read any exception
into it by a process of interpretation. We must presume that,
if the founding-fathers intended to provide any exception, they
would have said so specifically in Part III itself."
10. In Nilabati Behera v. State of Orissa [(1993) 2 SCC 746 :
1993 SCC (Cri) 527] this Courts (J. S. Verma, Dr. A. S. Anand
and N. Venkatachala, JJ.) held that award of compensation in a
proceeding under Article 32 by the Supreme Court or under Article
226 by the High Court is a remedy available in public law based
on strict liability for contravention of fundamental rights. It
is held that the defence of sovereign immunity does not apply
in such a case even though it may be available as a defence in
private law in an action based on tort. It is held further that
the award of damages by the Supreme Court or the High Court in
a writ proceeding is distinct from and in addition to the remedy
in private law for damages. It is one mode of enforcing the fundamental
rights by this Court or High Court. Reliance is placed upon Article
9(5) of the International Covenant on Civil and Political Rights,
1966 which says, "anyone who was has been the victim of unlawful
arrest or detention shall have an enforceable right to compensation".
The two opinions rendered by J. S. Verma, J. Dr. A. S. Anand,
J. are unanimous on the aforesaid dicta. The same view has been
reiterated very recently by a Bench comprising Kuldip Singh and
Dr. A. S. Anand, JJ. in D. K. Basu v. State of W. B. [(1997) 1
SCC 416 : 1997 SCC (Cri) 92 : (1996) 9 Scale 298]. The observations
in para 54 of the judgment are apposite and may be quoted : (SCC
P. 443, para 54)
"Thus, to sum up, it is now a well-accepted proposition in
most of the jurisdictions, that monetary or pecuniary compensation
is an appropriate and indeed an effective and sometimes perhaps
the only suitable remedy for redressal of the established infringement
of the fundamental right to life of a citizen by the public servants
and the State is vicariously liable for their acts. The claim
of the citizen is based on the principle of strict liability to
which the defence of sovereign immunity is not available and the
citizen must receive the amount of compensation from the State,
which shall have the right to be indemnified by the wrongdoer.
In the assessment of compensation, the emphasis has to be on the
compensatory and not on punitive element. The objective is to
apply balm to the wounds and not to punish the transgressor or
the offender, as awarding appropriate punishment for the offence
(irrespective of compensation) must be left to the criminal courts
in which the offender is prosecuted, which the State, in law,
is duty-bound to do. The award of compensation in the public law
jurisdiction is also without prejudice to any other action like
civil suit for damages which is lawfully available to the victim
or the heirs of the deceased victim with respect to the same matter
for the tortious act committed by the functionaries of the State.
The quantum of compensation will, of course, depend upon the peculiar
facts of each case and no strait-jacket formula can be evolved
in that behalf. The relief to redress the wrong for the established
invasion of the fundamental rights of the citizens, under the
public law jurisdiction is, thus, in addition to the traditional
remedies and not in derogation of them. The amount of compensation
as awarded by the Court and paid by the State to redress the wrong
done, may in a given case, be adjusted against any amount which
may be awarded to the claimant be way of damages in a civil suit."
11. The reference to and reliance upon Article 9(5) of the International
Covenant on Civil and Political Rights, 1996 in Nilabati Behera
[(1993) 2 SCC 746 : 1993 SCC (Cri) 527] raises an interesting
question, viz., to what extent can the provisions of such international
covenants/conventions be read into national laws. This issue has
been the subject-matter of a recent decision in Australia, viz.,
Minister for Immigration and Ethnic Affairs v. Teoh [(1995) 69
Aus LJ 423]. The United Nations Convention on the Rights of the
Child was ratified by the Commonwealth Executive in December 1990
and had force in Australia from 16-1-1991 pursuant to declaration
made on 22-12-1992 by the Attorney General pursuant to Section
47(1) of the Human Rights and Equal Opportunity Commission Act,
1986 to the effect that the said convention is an international
instrument relating to human rights. Respondent Teoh, a Malaysian
citizen was found to have imported and be in possession of heroin,
for which he was convicted. An deportation order was passed on
that basis. The Immigration Review Panel opined that deportation
of Teoh would deprive his young children (who were Australian
citizens) of their only financial support, landing them in bleak
misery. Article 3 of the aforesaid Convention provides that :
"1. In all actions concerning children, whether undertaken
by public or private social welfare institution, courts of law,
administrative authorities or legislative bodies, the best interests
of the child shall be a primary consideration."
Teoh invoked this article to ward off his deportation. The matter
was carried to the High Court where the question of enforceability
of the Convention by the national courts was thoroughly debated.
Mason, C.J., speaking for himself and Dean, J., stated the position
in the following words :
"It is well established that the provisions of an international
treaty to which Australia is a party do not form part of Australian
law unless those provisions have been validly incorporated into
our municipal law by statute. (Chow Hung Ching v. King [(1948)
77 CLR 449], CLR at p. 478; Bradley v. Commonwealth [(1973) 128
CLR 557], CLR 582; Simsek v. Macphee [(1982) 148 CLR 636], CLR
at pp. 641-642; Koowarta v. Bjelke-Petersen [(1982) 153 CLR 168],
CLR at pp. 211-212, 224-25; Kioa v. West [(1985) 159 CLR 550),
CLR at p. 570; Dietrich v. Queen [(1992) 177 CLR 292], CLR at
p. 305; J. H. Rayner Ltd. v. Deptt. of Trade [(1990) 2 AC 418
: (1989) 3 All ER 523 : (1989) 3 WLR 969], AC at 550.) This principle
has its foundation in the proposition that in our constitutional
system the making and ratification of treaties fall within the
province of the Executive in the exercise of its prerogative power
whereas the making and the alternation of the law fall within
the province of Parliament, not the Executive. (Simsek v. Macphee
[(1982) 148 CLR 636], CLR at pp. 641-42.) So, a treaty which has
not been incorporated into our municipal law cannot operate as
a direct source of individual rights and obligations under that
law. In this case, it is common ground that the provisions of
the Convention have not been incorporated in this way. It is not
suggested that the declaration made pursuant to Section 47(1)
of the Human Rights and Equal Opportunity Commission Act has this
effect.
But the fact that the Convention has not been incorporated into
Australian law does not mean that its ratification holds no significance
for Australian law. Where a statute or subordinate legislation
is ambiguous, the courts should favour that construction which
accords with Australia's obligations under a treaty or international
convention to which Australia is a party (Chu Kheng Lim v. Minister
for Immigration [(1992) 176 CLR 1] CLR at p. 38), at least in
those cases in which the legislation is enacted after, or in contemplation
of, entry into, or ratification of, the relevant international
instrument. That is because Parliament, prima facie, intends to
give effect to Australia's obligations under international law.
It is accepted that a statute is to be interpreted and applied,
as far as its language permits, so that it is in conformity and
not in conflict with the established rules of international law
(Polites v. Commonwealth [(1945) 70 CLR 60], CLR at pp. 68-69,
77, 80-81) ...
Apart from influencing the construction of a statute or subordinate
legislation, an international convention may play a part in the
development by the courts of the common law. The provisions of
an international convention to which Australia is a party, especially
one which declares universal fundamental rights, may be used by
the courts as a legitimate guide in developing the common law.
[Mabo v. Queensland (No. 2) [(1991) 175 CLR 1], CLR at p. 42,
per Brennan, J. (with whom Mason C.J. and McHugh, J. agreed);
Dietrich v. Queen [(1992) 177 CLR 292] (CLR at p. 321), per Brennan
J., at p. 360, per Toohey, J.; Jago v. District Court of New South
Wales [(1988) 12 NSW LR 558] (NSWLR at p. 569), per Kirby, J.;
Derbyshire Country Council v. Times Newspapers Ltd. [1992 QB 770]].
But the courts should act in this fashion with due circumspection
when Parliament itself has not seen fit to incorporate the provisions
of a convention into our domestic law. Judicial development of
the common law must not be seen as a backdoor means of importing
an unincorporated convention into Australian law. A cautious approach
to the development of the common law by reference to international
conventions would be consistent with the approach which the courts
have hitherto adopted to the development of the common law by
reference to statutory policy and statutory materials (Lamb v.
Cotogno [(1987) 164 CLR 1], CLR at pp. 11-12). Much will depend
upon the nature of relevant provision, the extent to which it
has been accepted by the international community, the purpose
which it is intended to serve and its relationship to the existing
principles of our domestic law."
12. Toohey, J. and Gaudron, J. Broadly concurred with the above
opinion. Toohey, J. spoke of such Conventions giving rise to legitimate
expectation among the people that the Executive will honour the
commitment while taking any action concerning children while Gaudron,
J. relegated the Convention to a subsidiary position vis-a-vis
Australian statute law. (McHung, J. dissented altogether.)
13. The main criticism against reading such conventions and covenants
into national laws is one pointed out by Mason, C.J. himself,
viz., the ratification of these conventions and covenants is done,
in most of the countries by the Executive acting alone and that
the prerogative of making the law is that of Parliament alone;
unless Parliament legislates, no law can come into existence.
It is not clear whether our Parliament has approved the action
of the Government of India ratifying the said 1966 Covenant. Indeed,
it appears that at the time of ratification of the said Covenant
in 1979, the Government of India had made a specific reservation
to the effect that the Indian legal system does not recognize
a right to compensation for victims of unlawful arrest or detention.
This reservation has, of course, been held to be of little relevance
now in view of the decision Nilabati Behera [(1993) 2 SCC 746
: 1993 SCC (Cri) 527]. [See page 313, para 43 (SCC p. 438, para
42) in D. K. Basu [(1997) 1 SCC 416 : 1997 SCC (Cri) 92 : (1996)
9 Scale 298].] Assuming that it has, the question may yet arise
whether such approval can be equated to legislation and invests
the Covenant with the sanctity of a law made by Parliament. As
pointed out by this Court in S. R. Bommai v. Union of India [(1994)
3 SCC 1], every action of Parliament cannot be equated to legislation.
Legislation is no doubt the main function of Parliament but it
also performs many other functions all of which do not amount
to legislation. In our opinion, this aspect requires deeper scrutiny
than has been possible in this case. For the present, it would
suffice to state the provisions of the covenant, which elucidate
and go to effectuate the fundamental rights guaranteed by our
Constitution, can certainly be relied upon by courts as facets
of those fundamental rights and hence, enforceable as such. So
far as multilateral treaties are concerned, the law is, of course,
different - and definite. See United States Supreme Court decisions
in Elisa Chan v. Korean Airlines Ltd. [(104 L Ed 2d 113] and Eastern
Airlines v. Floyd [113 L Ed 2d 569] and the House of Lords decision
in Equal Opportunities Commission v. Secy. of State for Employment
[1994 ICR 317 : (1994) 1 All ER 910] following its earlier decisions,
including Factortame (No. 2) [Factortame Ltd. v. Secy. of State
for Transport (No. 2), (1991) 1 AC 603 : (1991) 1 All ER 70 :
(1990) 3 WLR 818].
14. Now coming to the facts of the case, we are of the opinion
that award of compensation of Rs. 1,00,000 (Rupees one lakh only)
to the families of each of the deceased would be appropriate and
just. The same shall be paid by the Government of Manipur. The
Collector/District Magistrate, Churachandpur shall hand over the
cheques to the respective families of the deceased, namely Lalbeiklien
and Saikaplien, within two months from today. The writ petition
is disposed of accordingly. The People's Union for Civil Liberties,
which has filed this writ petition and pursued it all these years
shall be entitled to its costs, assessed at Rs. 10,000 (Rupees
ten thousand only) payable by the State of Manipur within the
same period.
6.Malkiat Singh, V. State Of U.P. 1998-(009)-SCC -0351 -SC
Constitution of India - Art. 32 - Entitlement of the petitioner
to compensation - Pilibhit firing case - Petitioner's son was
killed in an alleged encounter which took place between the police
and Sikh youths - Amount of compensation paid to the petitioner
to compensate him for the death of his son - Respondent-State
directed to pay Rs. 5 lakhs to the petitioner by way of compensation
for the death of his son.
ORDER
1. This is a habeas corpus petition filed by the father of one
Talvinder Singh. The allegation of the petitioner is that since
12-7-1991 Talvinder Singh has been kept in illegal custody by
the police officers of District Pilibhit, State of U.P. It is
now unnecessary to state other facts and allegations as on the
basis of the report filed by the Additional Chief Judicial Magistrate,
Pilibhit. Pursuant to the order passed by this Court on 9-3-1992,
it can be stated with reasonable certainty that Talvinder Singh
was killed in an alleged encounter which took place between the
police and 4 Sikh youths on 13-7-1991 at Phagunal Chat in the
jurisdiction of P. S. Bilsanda. From the charge-sheet filed by
the CBI against some police officers in respect of deaths of 10
other Sikh youths, it appears that while deceased Talvinder Singh
along with other Sikh youths was travelling in a bus, he was made
to get down from it and was taken into custody by the police.
What happened thereafter and the manner in which the encounter
took place is neither explained by the police nor has been stated
by the CBI or the ACJM, Pilibhit, who conducted the enquiry.
2. In view of the report of ACJM this Court on 7-5-1996 passed
the following order :
"Mr. R. S. Sodhi the learned counsel for the petitioner,
states that though the learned ACJM found on the basis of photographs
that the petitioner's son Talvinder Singh is one of the persons
who died in the incident involving firing by the U.P. Police,
the CBI has not accepted the said finding regarding the death
of Talvinder Singh. It is obvious that if he is found dead, the
writ petition be only confined to the question of the entitlement
of the petitioner to compensation. If the said Talvinder Singh
is alive then he be produced by the police.
Issue notice."
3. It is now an accepted position that Talvinder Singh died in
the incident which took place on 13-7-1991. All attempts to find
his body have proved futile. But from the photograph identified
by the father and the grandfather of Talvinder Singh, it is established
that he is dead, because the police had taken photographs of all
those who were killed in those two encounters. Therefore, the
only question which now survives in this petition is what amount
of compensation should be paid to the petitioner to compensate
him for the death of his son.
4. In a similar case i.e. in Writ Petition No. 632 of 1992 this
Court awarded Rs. 5 lakhs as compensation. We think that the ends
of justice would be met if the respondent-State is directed to
pay Rs. 5 lakhs to the petitioner by way of compensation for the
death of Talvinder Singh. The State shall pay this amount within
8 weeks. The learned counsel for the State states that the State
will take out a draft in the name of the petitioner and will deposit
the same with the Registrar of this Court. The Registrar shall
hand over the draft to the petitioner after proper identification
by Mr. R. S. Sodhi, learned counsel for the petitioner. The writ
petition is disposed of accordingly.
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