ex-judge for order on Punjab fake encounters
Chandigarh, November 26
A Division Bench has also set aside the orders of a CBI probe passed by the now-retired Single Judge five years ago.
Acting on a petition for directions to the CBI to register separate FIRs regarding 10 murders and “encounters” after “physical torture at CIA Staff, Moga”, the Single Judge had in April 2008 directed the premier investigating agency to look into the matter. In the petition, a black cat, Satwant Singh Manak, had stated that he was an eyewitness, but had a change of heart. The victims were killed from “time to time” by police officer; who prepared false documents of police encounters. Some of the bodies were disposed of without “showing in the police proceedings”. An appeal in the case was filed by Bakhashi Ram, Darshan Singh, Bachan Singh Randhawa and other police officers.
Taking up the appeals, the Bench of Chief Justice Sanjay Kishan Kaul and Justice Augustine George Masih asserted the petition had not been filed by the family of the alleged victims, but a Punjab Police constable.
“The petition has not been styled as a public interest litigation, but effectively is so. That is what it was urged before the Single Judge as also before us. As per the roster assigned by the Chief Justice, such public interest litigation matters are to be heard by the First Bench,in any case by a Division Bench. The Single Judge in the impugned order on April 1, 2008, proceeded on the basis that there was a larger public interest involved.
“The Single Judge was, thus, quite conscious of the fact that he had given a colour of public interest litigation to the present petition…. 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 Single Judge to give his opinion in the matter.
The Division Bench asserted the observations made by the Single Judge suggest he was of the opinion that it was a “usual and routine practice” of the Punjab Police to have encounter killings; and the police officials did not receive even a scratch, while all alleged terrorists died. “The fact that Punjab state went through a period of difficult times requiring special efforts to maintain law and order is well known and that the police played a salutary role.
“In this, some excesses may have been possible, but that does not make a rule. If there was inappropriate conduct of certain police officers, the whole police force cannot be painted with the same brush denigrating and belittling their efforts”.
The Bench added: “How can one say that the police which has faced so many incidents, does not know what happens during ambush; the FIRs registered by the police are generally one sided; usual mode of investigation is to close the case after declaring the person escaped as proclaimed offender; it is difficult to find many officers of the Punjab police free from taints who could be entrusted with the investigation etc…. A much greater restraint was the least which was expected on such an issue”.
Issue of recusal
The Division Bench went on further to suggest the Single Judge should have avoided passing a verdict because of his opinion on police functioning. “Where there are large number of observations in generality expressing a particular view as to how the functioning of the Punjab Police is preconceived by the Single Judge, obviously there is a subconscious influence of a perceived notion of its functioning which is not based on the facts of the case and which has given rise to sweeping directions in the present case. “If this was the view of the learned Single Judge, it was another reason for the learned Single Judge to eschew giving his judicial verdict on the matter.”
The Bench observed: “The CBI itself stated the futility of the exercise to be carried out as the whole petition revolves around the personal grievance of the petitioner against the superior officers under whom he was working….
“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 CBI pleaded that it should not be burdened with the investigation of such a nature…. With the stand of the CBI coupled with the absence of any material with the petitioner or detailed facts being set out in the petition, there was hardly any occasion for directing investigation by the CBI. Merely because the original petitioner was unhappy with the department, could not be a ground to take cognisance of his petition and put the burden on the other officers to face CBI inquiry”.
The Bench asserted that the Single Judge, rather than dismissing the petition, proceeded to issue wide ranging directions on the basis of his personal perceptions, especially in regard to the Punjab Police.
“It is not an innocuous direction…. It required at least some appropriate material to be on record with proper averments to come to a conclusion that such an investigation was necessary”.
Dubbing the petitions as “clearly an abuse of the process of court”, the Bench added it was accentuated by the petitioner’s desire for personal gains. “We are also of the view that neither were general observations made by the Single Judge warranted nor was the Single Judge entitled to entertain and adjudicate the PIL… We are not satisfied that there is any material which would entitle the original petitioner to similar or other direction from us…. We, thus, allow all the appeals and set aside the impugned order issued on April 1, 2008, and dismiss the original writ petition. All appellants shall also be entitled to costs quantified at Rs 2,000 each to be paid by the original petitioner (Manak)”.