The Punjab and Haryana High Court has ordered expeditious trial of Punjab policemen accused of carrying out extra-judicial killings during militancy days in the state in the 1990s. Upholding the trial court order, HC said that Centre’s sanction for prosecution of police officers accused of alleged fake encounters in Punjab would arise only after the prosecution had presented its evidence, and not at the initial stage of trial. HC ordered the trial court to proceed “expeditiously and frame a schedule for recording evidence of prosecution at the earliest”.
In the 77-page judgment on 27 petitions involving nearly 50 police officials, Justice Surinder Gupta rejected the Punjab government’s contention that the police officials had risked their lives to bring out the state from a grave situation during ‘90s and “now prosecuting for the act done by them during discharge of their duties will affect morale of police force”.
The petitioners had cited Section 6 of the Punjab Disturbed Areas Act or Section 197 of CrPC in support of their contention that sanction for prosecution was required for the initiation of trial.
“After filing of chargesheet in these cases a long period has lapsed and the prosecution evidence is yet to start. It is neither in the interest of prosecution nor petitioners that sword of prosecution keeps on hanging over their heads for such a long period. The trial court is directed to proceed further in the matter expeditiously and frame a schedule for recording evidence of prosecution at the earliest and then to allow petitioners to lead defence evidence, if required, in support of their plea,” the final order read.
Most of the cases relate to the 1990s, and were handed over to CBI for investigation. The CBI found the encounters to be fake and staged.
In 2001, when the chargesheet was filed in the cases in the CBI special court at Patiala, the accused policemen raised the objection saying there is no sanction order for their prosecution from the Centre.
They approached the High Court, which even at that time, dismissed their plea, after which they approached the Supreme Court. The apex court sent the case back to the trial court for a “fresh look”, but in 2016, the trial court held its ground and ordered that it would look into the question of sanction at a later stage, after assessing the evidence against the officers.
The officials again approached the High Court against the trial court order, which had been under stay since 2016, and seeking discharge of the cases against them. That stay ended on December 20, and the High Court’s order was made public today.
Justice Gupta, in his order, has observed that the prosecution has to be allowed the opportunity to present evidence and the trial court can decide the question of legal sanction only after that. “It is only after conclusion of evidence of prosecution that the court on the basis of defence evidence or the material placed on record can come to the conclusion as to which version i.e of prosecution or the defence is correct and then decide as to whether sanction for prosecution is required or not,” the order said.
It further added: “Hon’ble apex court observed that question of sanction should be dealt with at the stage of taking cognizance, but this question may arise at any stage of proceedings and in some cases, it may not be possible to decide the question effectively and finally without giving opportunity to defence to adduce evidence. In such cases, question of good faith and bad faith be decided on conclusion of trial.”
CBI counsel Sumeet Goel had informed the High Court that the cases had been registered following the orders of the apex court and High Court on the “matter of cremation of large number of unclaimed dead bodies by Punjab Police” and the police action “in no manner could be termed as act performed as per spirit of legal provisions” on self-defence and the immunity guaranteed to the police officials from prosecution without the permission of central government.
Punjab Advocate General Atul Nanda during the hearing of the case had supported and endorsed the submission of the counsels representing the accused police officials and said, “Sanction for prosecution is an issue, which is to be looked into at the inception of trial and not at later stage.”