Updated: January 21, 2021 10:44:06 am
While quashing a decade old murder FIR against three retired cops over custodial death of an individual who was in fact alive, the Punjab and Haryana High Court has directed the Ludhiana Additional Sessions Judge to go through at least 10 judgments of the apex court for denying anticipatory bail to the three policemen in the case. The ASJ has been directed to submit a written synopsis of the cases to court for failing to exercise his jurisdiction under Section 438 CrPC and for passing an illegal order.
Justice Arvind Singh Sangwan, while hearing the petition of the three retired Punjab Police officials — Amarjit Singh, Jaswant Singh and Kabal Singh, was told that the ASJ dismissed their anticipatory bail application though it was brought to his (ASJ) notice that the person was alive.
The matter relates to 2005, when petitioners were posted in Police Station Dehlon, Ludhiana and had arrested one Hardeep Singh, son of Naginder Singh on August 25, 2005 under Sections 15 and 25 of the NDPS Act. When the police party was taking Hardeep Singh in a government vehicle to produce him before the Illaqa Magistrate, he escaped from the police custody and another case was registered against him under Section 224 IPC.
Thereafter, Naginder Singh filed a criminal writ petition in 2005 at HC, seeking to produce his son Hardeep Singh, on the pretext that he has been illegally detained by the police in Police Station Dehlon, Ludhiana. A Warrant Officer was appointed but Hardeep Singh could not be recovered. Later, on September 17, 2005, a dead body of an unknown person was found and its post-mortem was conducted. Naginder alleged that the dead body was of his son and the petitioners had murdered him. The High Court had then directed the ADGP Crime to conduct and inquiry in to the matter and submit a report. The ADGP submitted the report saying that the dead body was not of the son of the Naginder and he (Hardeep) was alive and was in regular touch with his father.
The HC then directed the Sessions Judge, Ludhiana, to hold an inquiry and submit a report about the whereabouts of the son of the complainant. The Sessions Judge submitted an inquiry report on August 31, 2008, holding that the son of the complainant was eliminated by the police while in custody. Following this, in view of the said report, on May 21, 2010, it was directed to register an FIR against the accused (three policemen) under Sections 302 (murder) and 201 (Causing disappearance of evidence of offence, or giving false information to screen offender) IPC. The SIT, however, submitted a cancellation report before the magistrate claiming that the son of the complainant was alive as no evidence has come against the accused persons and in fact, Hardeep Singh had escaped from the police custody. Naginder challenged this cancellation report. The magistrate, however, treated this petition as a criminal complaint and summoned the petitioners (policemen) to face trial. Later non-bailable warrants were issued against the petitioners.
The petitioners, however, submitted an application at the trial court on September 2, 2019, that Hardeep Singh (claimed to be deceased son of the complainant) was in fact, alive and he was declared proclaimed offender in August 2005 and now, he has been arrested on August 30, 2019 and he is in judicial custody. After the Magistrate (JMIC) Court refused to dispose of the protest petition of Naginder Singh, the petitioners moved the High Court challenging the summoning order of the Magistrate Court of 2017, though a cancellation report had been filed by SIT. The Ludhiana police commissioner also filed an affidavit in the HC, submitting that Naginder Singh intentionally and deliberately misguided not only the police authorities while setting up a case that his son was murdered in the year 2010 and also put the state machinery on notice when number of inquiries were conducted on the basis of the false complaint given, and Naginder also been given Rs 2 lakh compensation by the state as ex-gratia.
Advocate Aman Bansal, the counsel for petitioners, argued before the HC bench that the petitioners moved application under Section 438 CrPC, for grant of anticipatory bail in view of the fact that Hardeep Singh is alive, however, the ASJ dismissed the application on July 22, 2020, and the JMIC as well as the ASJ failed to exercise the jurisdiction vested with them.
HC orders relief
Justice Sangwan ruled, “The Magistrate, while dismissing the application vide impugned order dated 02.12.2020 even again issued Non-bailable Warrants against the petitioners. This part of the order is also illegal…..The proper course was to direct the counsel for the petitioners to furnish bail/surety bonds as they intended to appear before the Magistrate, but for dismissal of anticipatory bail by the Additional Sessions Judge, they apprehended arrest for no fault.”
Justice Sangwan ordered to discharge the petitioners from the FIR of murder registered in 2010, and set aside the summoning orders of the JMIC court. Meanwhile, considering the fact that the petitioners are subjected to unwanted and unnecessary criminal prosecution for a period of last 15 years, the HC ordered that the SLSA, Punjab through DLSA, Ludhiana, will pay the costs of Rs 50,000 each to all the three petitioners within a period of four months by recovering Rs 2 lakh from Naginder Singh. While it will be open for the prosecution to initiate the proceedings under Section 340 CrPC against Satpal Singh, Gurdial Singh and Naginder Singh, who were the complainant and witnesses in the alleged murder case.
“Considering the fact that the Additional Sessions Judge, has failed to exercise its jurisdiction, it is directed that he will go through at least 10 judgments of the Hon’ble Supreme Court including two Constitutional Bench Judgments where the Hon’ble Supreme Court has interpreted the provisions of Section 438 Cr.P.C..The Additional Sessions Judge-I, Ludhiana, will submit the written synopsis on the exercise of jurisdiction by a judge under Section 438 Cr.P.C., after going through the judgments, within a period of 30 days to the Director, Chandigarh Judicial Academy,” said Justice Sangwan.