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2013 Supreme(P&H) 982
IN THE HIGH COURT OF PUNJAB AND HARYANA
The Hon’ble Mr. Chief Justice Sanjay Kishan KaulT and Hon’ble Mr. Justice Augustine George Masih
L.P.A. No. 153 of 2008
Bakhashi Ram & Ors.
v.
Satwant Singh Manak & Ors.
{Decided on 26/11/2013}
For the Appellant in LPA No. 154 of 2008:Mr. H.S.Hooda, Sr. Advocate with Mr. G.S.Hooda, Advocate.
For the Appellants (in LPA No. 181 of 2008)
and for the State of Punjab in other connected cases:Mr. Anupinder Singh Grewal, Addl. Advocate General, Punjab.
For the Respondent No.1:Mr. R.S.Bains, Advocate.
For the Respondent No.3-C.B.I:Mr. Sumeet Goel, Advocate.
For the Respondents No. 14 &15 in LPA No. 154 of 2008:Mr. G.H.S.Dhillon, Advocate.
Headnote:Public Interest Litigation--Antecedents of petitioner--Complaints relating to violation of Human Rights can form a part of the Public Interest Litigation, but any doubt on antecedents of the person, can disentitle the petition from being maintained.
Public Interest Litigation--Roster--The learned Single Judge cannot entertain a petition in respect of which jurisdiction has not been assigned to him by the Chief Justice--It was not for the learned Single Judge to give his opinion in the matter--Such an opinion is effectively by a Judge who is a ‘coram non-judice’.
Investigation--Public Interest Litigation--Direction to CBI to investigate “any other offence” against alleged officers is wholly erroneous and cannot be sustained.
Investigation--No investigating agency is empowered to conduct a ‘fresh’, ‘de novo’ or ‘re-investigation’ in relation to the offence for which it has already filed a report in terms of Section 173 of Cr.P.C.
(A) Constitution of India, 1950, Art.226--Public Interest Litigation--Investigation sought in criminal acts--Where there are oblique motives and personal gains, the Court should not allow itself to be activised at the instance of such person and must reject the application at the threshold especially where there are third parties. (Para 62)
(B) Constitution of India, 1950, Art.226--Maintainability of Public Interest Litigation Rules 2010--Public Interest Litigation--Antecedents of petitioner--Complaints relating to violation of Human Rights can form a part of the Public Interest Litigation, but any doubt on antecedents of the person, can disentitle the petition from being maintained.--Infact, the aspect of three criminal cases registered against the petitioner and departmental proceedings initiated against him, which ultimately are stated to have resulted in his dismissal from service, were not fully disclosed in the petition--Writ petition dismissed. (Para 61)
(C) Constitution of India, 1950, Art.226--Public Interest Litigation--Roster--Held; If the learned Single Judge found that the petition was liable to be treated as a Public Interest Litigation, then the matter ought to have been placed before the appropriate Bench--Thus, the learned Single Judge cannot entertain a petition in respect of which jurisdiction has not been assigned to him by the Chief Justice as the order passed by the Court may be without jurisdiction and make the Judge a ‘coram non-judice’.
The judicial disciple demanded that on having come to a conclusion that the petition must proceed being akin to a Public Interest Litigation, the same should have been directed to be placed before the appropriate Bench as per Roster and it was not for the learned Single Judge to give his opinion in the matter--Such an opinion is effectively by a Judge who is a ‘coram non-judice’. (Para 48)
(D) Constitution of India, 1950, Art.226--Public Interest Litigation--Direction to CBI for investigation--Direction to investigate “any other offence” against alleged officers is wholly erroneous and cannot be sustained--There has to be a prima-facie offence found to have been committed or a person’s involvement is prima-facie established for a direction to be given and not a direction to the Central Bureau of Investigation “to investigate whether any person has committed any offence or not”--Such a direction has been held to be violative of Article 21 of the Constitution--A man has therefore to be left alone to enjoy “life” without fretters. (Para 65)
There was lack of specific information with regard to the time, date and in what manner the offences were committed with no explanation as to why the original petitioner kept mum for such a long time after commission of the alleged offences--The heavily overburdened C.B.I. pleaded that it should not be burdened with the investigation of such a nature and expressed its opinion that it was not feasible for it to undertake investigation of the case relating to the allegations made in the present petition which lacks authenticated proof and evidence with regard to the commission of crime.
(E) Constitution of India, 1950, Art.226--Investigation to CBI--No investigating agency is empowered to conduct a ‘fresh’, ‘de novo’ or ‘re-investigation’ in relation to the offence for which it has already filed a report in terms of Section 173 of the Code of Criminal Procedure--Criminal Procedure Code, 1973, S.173. (Para 70)
(F) Constitution of India, 1950, Art.226--Public interest Litigation--Original petitioner contended that he was Constable in Punjab Police and is also an eye-witness to fake encounters--Single Judge entertained the petition made various directions regarding investigations and also made general observations regarding Punjab Police--Petition dismissed and observations held to be personal view any following grounds:
(1) PIL is to be heard by Division Bench and not Single Judge.
(2) Direction to investigate “any other offence” by alleged officers is not sustainable.
(3) Antecedents of original petitioner were not clean.
(4) Original petitioner has desire for personal gains in the form of monetary and medals awards, his frustration of having been denied the same and the departmental action and criminal prosecution initiated against him.
(5) Facts pleaded were sketchy and lacking in all material particulars despite the fact that the original petitioner claims to be an eye witness and thus a participant is the same.
Mr. Sanjay Kishan Kaul, C.J.:- Original petitioner, namely, Satwant Singh Manak, was a Constable in the Punjab Police. On facing certain disciplinary proceedings, he claims to have had a change of heart and seeks to portray what he claims are police excesses in the form of fake encounters to which he claims to have been an eye witness.
FACTS
2. The writ petition has originally been framed under Articles 226/227 of the Constitution of India seeking a writ in the nature of mandamus directing respondent No.2 i.e. Director General of Central Bureau of Investigation, New Delhi, to register 10 separate F.I.Rs. regarding 10 murders stated to have been caused from time to time by respondents No. 3 to 9, who are former or serving officers of the police force of Punjab and further praying that the family of the deceased may be awarded compensation of Rs. 2,00,000/- each. The averments in this behalf in the writ petitions are material. The petitioner was recruited as a Constable in the Punjab Police and claims to have been allotted black-cat duty. The petitioner claims that as per the instructions of his superiors he went to the groups of terrorists and collected their information and many terrorists wanted by the police had been captured by the petitioner with the help of black-cats of Punjab Police. Respondents No. 3 to 9 are alleged to have physically and mentally tortured these persons and later on murdered them in C.I.A. Staff Moga, Police Station City Moga, Police Station Mehna etc. in separate incidents and some of the deceased were shown to have been killed in false police encounters in records for which even Commendation Certificates were issued by D.I.G./respondent No.2 including to the petitioner.
3. The petitioner was, however, arrested on 12.04.1993 in the evening at C.I.A. Staff Moga. A member of Parliament from Bhatinda, is stated to have intervened on behalf of the petitioner as also the relative of the petitioner but later on the petitioner was arrested in three cases i.e. in false police encounters having arms without licences and others and later on the department served a notice to the petitioner alleging absence from duty from 21.06.1992. The petitioner claims that he alongwith other police officers on 25.07.1992 carried out a raid in which terrorist Lakhwinder Singh Lakha was arrested while other terrorists escaped. However, later on Lakhwinder Singh Lakha was shown to be arrested and encountered in the vicinity of Police Station Sadak and a Czechoslovakia made gun was alleged to have been recovered from his possession. The petitioner claims that he had played an important role in the arrest of Lakhwinder Singh Lakha but no award or promotion was awarded to him. Some other similarly situated police officials were also not granted award or promotion etc.
Superintendent of Police (Operation)-respondent No. 7 is stated to have handed over a letter dated 12.04.1993 regarding anti-terrorist duty of the petitioner for which the petitioner demanded funds for going to Nanital for collecting information, but respondent No. 7 informed that there was no source of funds and directed the petitioner to raid the house of Zora Singh under Police Station Mehna to take custody of Poppy-husk and after the sale of the same may go to Nanital. The petitioner states that he did so but later on Zora Singh complained against the petitioner before respondents No. 14 and 3. It is stated that the petitioner was involved by Zora Singh and a conspiracy was hatched to implicate the petitioner in false cases and the petitioner infact was arrested. The petitioner claims to have gone through torture. The allegations stated to have been leveled against the petitioner were that he had committed robbery etc. and the police while keeping the petitioner in illegal custody implicated him in false police encounter case under Section 307 of the Indian Penal Code and another case under Sections 25/54/59 of the Arms Act, 1959 as also case under Secti
