ZORAWAR SINGH & ANR. Versus GURBAX SINGH BAINS & ORS: Supreme Court - Criminal Procedure Code, 1973, Sections 173, 482
Supreme Court of India
CRIMINAL APPEAL NO. 2530 OF 2014 @ (SPECIAL LEAVE PETITION (CRL.) NO.2038 OF 2013) Judgment Date: Dec 04, 2014
Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2530 OF 2014 @
(SPECIAL LEAVE PETITION (CRL.) NO.2038 OF 2013)
ZORAWAR SINGH & ANR. .... APPELLANTS
Versus
GURBAX SINGH BAINS & ORS. ....RESPONDENTS
J U D G M E N T
UDAY UMESH LALIT, J.
1. This petition for special leave to appeal challenges the judgment and
order dated 21.02.2013 passed by the High Court of Punjab and Haryana in
Criminal Miscellaneous No.M-6656 of 2011. Leave granted.
2. On 28.09.2010, a complaint was given by one Karnail Singh alleging
that on the intervening night of 27th and 28th of September 2010 in a road
accident between a Ford Endeavour Car having registration No. PCP 17 driven
by Zorawar Singh i.e. the present Appellant No.1 and a truck bearing
Registration No. HR 58- 3264 at Liberty Chowk, Rajpura, District Patiala,
two students namely Gagandeep Singh Bains (son of the present respondent
no.1) and Gaurav Verma died and the other two occupants of the car namely
Appellant No.1 and one Jaskaran Singh got badly injured and were moved to
the hospital . On these allegations FIR No.219 was registered under
section 304A, 279, 337, 427 IPC at Police Station, Rajpura against the
driver of the truck.
3. Respondent No.1 however submitted representation to the Director
General of Police, Punjab alleging that his son had not died in that
accident but was murdered in a pre-planned manner. Similar such
representation in the form of an application dated 21.02.2011 was sent by
Respondent No.1 to the High Court of Punjab and Haryana which was
registered as Diary No.350 dated 23.02.2011 and was placed before a learned
Single Judge who directed that the application be placed on the judicial
side of the High Court. Accordingly a note was prepared by the office of
the High Court on 26.02.2011 requesting the learned Chief Justice whether
the petition could be registered under Section 482 of Cr.P.C. for
transferring the case to CBI for investigation into the matter. The
learned Chief Justice having given his approval, the matter was registered
as Criminal Miscellaneous No.6656 of 2011 and was placed before a learned
single Judge who by her order dated 03.03.2011 issued notice to the State
of Punjab.
4. In the meantime the Principal Secretary, Home, Punjab vide his letter
dated 27.02.2011 entrusted the matter to Shri Kunwar Vijay Pratap Singh
IPS, DIG (Crime) to conduct independent investigation and submit his
report. The matter before the High Court stood adjourned from time to time
and on 18.11.2011 the High Court was told that the enquiry was nearing
completion. On the next date i.e., on 21.12.2011 the High Court was
informed that the DIG (Crime) had concluded his enquiry and had recommended
addition of offence under Section 302 IPC. The order passed by the High
Court on 21.12.2011 was to the following effect:
"State Counsel on instructions says that inquiry in this case has been
concluded and the DIG (Crime) has recommended addition of offence under
Section 302 IPC. Let the report in this regard be placed on record.
Adjourned to 16.01.2012."
5. On 27.12.2011 said DIG (Crime) submitted his enquiry report in which
he concluded as under:
"As per the enquiry conducted by me that keeping in view the facts
and circumstances mentioned above, the case FIR No.219 dated 28.09.2010
registered under section 279, 304-A, 427 IPC police station city Rajpura
has not been found on the basis of true and material facts and the
investigation also seems to be done by concealing the true and real facts
especially as per the statement given by the eye witness Jatinder Singh
(truck conductor) that fight took place at the spot between the two parties
came in two different cars and the case is not found of road accident. So
custodial interrogation of the concerned persons is necessary as the matter
is of serious nature. So after registering the case under section 302 IPC,
it is recommended to investigate the matter from some independent and
impartial Agency for bringing the truth into light."
Sd/-
6. Though the report had stated that a case be registered under Section
302 IPC and that the investigation be thereafter handed over to some
independent and impartial agency, a Special Investigation Team ('SIT' for
short) was constituted by the Director General of Police, Punjab, who did
not agree with the findings in the aforesaid report. On 24.01.2012 State
of Punjab issued a letter that the SIT constituted by the police department
was directed to be disbanded and that the matter be pursued in the Court as
already submitted. Said letter was to the following effect:-
"GOVERNMENT OF PUNJAB
DEPARTMENT OF HOME AFFAIRS & JUSTICE
(HOME VII BRANCH)
To
The Director General of Police,
Punjab, Chandigarh,
Memo.No.4/14/12-2-g-7/234 dated 24.01.2012
Sir,
Kindly refer to the subject cited above.
In this context it is stated that a SIT (Special Investigation Team)
comprising of Sh. B.K. Garg I.G. (Crime) Sh. R.K. Sharda, SP Crime and
Gurbir Singh SP has been constituted by the Police deptt. without the
directions of the Court. It is pertinent to point out here, that matter is
already sub-judice in the court of law as per the investigations completed
by Sh. Kanwar Vijay Partap Singh IPS, DIG Crime, Mohali.
To reinvestigate the case without the directions of the court by the
SIT will lead to tempering the evidence and record as the inferences drawn
by the SIT may be different from Kanwar Vijay Partap Singh IPS DIG Crime,
on account of which the case under Section 302 has been filed in the Court
of law.
As such, constitution of SIT by Police deptt. without any rhyme or
reason is of no avail and unless Hon'ble court orders in this context.
Keeping in view the facts stated above the SIT constituted by Police
Deptt. is directed to be disbanded. The matter be pursued in the court of
law as already submitted.
SD/-O.P. Bhatia
Deputy Secretary, Home and Justice
Endsst No.11/14/12-2g7/239 dated Chandigarh 25.1.2012
A copy of above is forwarded to Sh. Gurbax Singh Bains H.No.206 Phase 6
Mohali for information with reference to his application dated 17.01.2012.
Sd/- Superintendent"
7. Inspite of the aforesaid directions, the SIT went ahead and submitted
its report on 01.03.2012, the conclusions wherein were to the effect that
whatever happened was road accident and that the allegations levelled by
Respondent No. 1 that it was an act of murder, were absolutely baseless.
The matter appeared before the High Court on 24.04.2012 and the following
order was passed:-
"Applicant -Sardar Gurbax Singh Bains submits that the respondents police
authorities are intending to present the report under Section 173 Cr.PC, on
the basis of investigation conducted by the Special Investigation Team
(S.I.T) constituted vide order dated 4.1.2012, which came to be disbanded
by the State of Punjab, vide order dated 24.1.2012. He further submits that
once the SIT has been disbanded vide order dated 24.1.2012, the S.I.T has
no jurisdiction to proceed further to prepare the conclusion report.
Notice of the application to the non-applicants for 23.07.2012.
In the meantime, the report under Section 173 Cr.PC (Challan) shall not be
presented before the court concerned , on the basis of the report dated
1.3.2012 submitted by the S.I.T. constituted vide order dated 4.1.2012,
which had been disbanded vide order dated 24.1.2012.
However, the investigating agency would be at liberty to proceed further on
the basis of the report dated 27.12.2011 submitted by the Deputy Inspector
General of Police (Crime), Punjab, recommending addition of the offence
under Section 302 IPC to FIR No. 219 dated 28.09.2010 under Sections 304-A,
279, 337,427 IPC registered at Police Station Rajpura, Distt. Patiala. A
copy of this order be given dasti to the learned State Counsel as well as
to the Petitioner, who is appearing in person, under signatures of the
Court Secretary attached to this Bench, for onward submission to the
authorities concerned for compliance thereof.
To be listed for further consideration on 23.07.2012."
The High Court thus clearly directed that the investigating agency could
proceed on the basis of the report submitted by the DIG (Crime),
recommending addition of offence under Section 302 of IPC and that its
order be placed before the concerned authority for due compliance.
8. The record further indicates that the Inspector General of Police
(Crime), however, submitted a report on 17.07.2012. The concluding part of
the report was to the following effect:-
".....So, after perusal and examining all documents, witnesses and reports
of both the enquiry reports I am of the considered view that it is clearly
an accidental case and no doubt can be raised regarding the death of two
boys in this road accident. The investigation conducted by SIT is a through
enquiry which has to be appreciated as the members of the SIT have gone
down to the depth of the case and has examined this case at every point. As
the DIG crime Sh. Kunwar Vijay Partap Singh, has himself recommended in his
report that the matter needs to be investigated from some independent and
impartial agency for bringing the truth in to light, so, taking into
consideration the recommendations of the DIG Crime, the then DGP Punjab
constituted a SIT who submitted its report to the DGP, Punjab who after
agreeing with the report of the SIT directed to present the report in the
Hon'ble Punjab & Haryana High Court. The same was presented in the Hon'ble
High Court on 01.03.2012. As it is purely an accidental case and we should
stick to the report of the SIT and I am of the opinion that report of the
SIT should be accepted. However we should inform the Principal Secretary
Home, to review his orders dated 24.01.2012 and 22.02.2012 regarding
disbanding of the SIT by sending him a report of special investigation team
alongwith the comments of the Crime Branch. Hon'ble Punjab & Haryana High
Court may also be apprised of the matter accordingly as the case if fixed
for hearing on 28.07.2012."
9. Immediately after the aforesaid report dated 17.07.2012, another SIT
was constituted vide order dated 18.07.2012 and the said order reads as
under:-
"PUNJAB GOVERNMENT
HOME AFFAIRS AND JUSTICE DEPARTMENT
(HOME -4 BRANCH)
I Order
With a view to conduct investigation concerning FIR No. 219 dated
28.09.2010, Police Station Rajpura city District Patiala, a team, under the
supervision of Shri Kanwar Vijay Partap Singh, IPS, is constituted in which
two officers not below the rank of DSP can be included by him. In addition
to it, he will have full authority to get cooperation & sevices of any
officer/official.
Dated: Chandigarh D.S. Bains
Principal Secretary,
Punjab Government,
Home Affairs & Law Department
Endst. No. 7/4/12-5H/1424-26 dated Chandigarh 20.07.2012.
A copy of above is sent to the following for information & necessary
action:-
1. Director General of Police, Punjab, Chandigarh
2. Shri Kanwar Vijay Partap Singh, IPS ,Deputy Inspector General of
Police, Punjab, Armed Police, Chandigarh.
3. Shri Gurbax Singh Bains, House No. 206, Phase 6, Mohali 160055
Sd/-
Under Secretary, Home"
10. When the matter appeared before the High Court on 23.07.2012
constitution of fresh SIT was brought to the notice of the High Court and
at the request of the counsel for the State the matter stood adjourned.
Following was the text of the order passed by the High Court on 23.07.2012:-
"Affidavit of Vibhu Raj, Deputy Inspector General of Police, Crime, Punjab
filed in the Court today is taken on record and copy thereof has been
supplied to the petitioner, who is appearing in person.
Learned counsel for the State, on instructions from Inspector Manjit Singh,
Crime Branch, Punjab, submits that the newly constituted Special
Investigating Team (S.I.T) headed by Kunwar Vijay Partap Singh, is already
seized of the matter. However, he submits that the newly S.I.T. would
require reasonable time to investigate the matter.
On his request, adjourned to 31.10.2012.
In the meantime, fresh status report be filed by way of affidavit of the
concerned officer."
11. On 27.09.2012, the SIT was however reconstituted and the relevant
portion of the order dated 27.09.2012 is to the following effect:-
"....The Principal Secy. Home, Punjab vide order No. 7/4/12-3H4/1753 dated
12.09.12, directed the office of DGP, Punjab to the effect as that in this
matter the Govt. decided that keeping in view the natural justice, the
investigation of this case may be conducted by constituting a Special
Investigation Team at his level (office of DGP/Punjab).
In compliance with the order dated 12.09.2012 of Home Deptt., Punjab, a
Special Investigation Team to investigate the above said case FIR No. 219
dated 28.09.2010 u/s 304-A, 279,337,427 IPC P.S. Rajpura is hereby
constituted under the Chairmanship of IGP /Zonal , Patiala, who may select
two SP rank officers of his Zone (except that of Distt. Patiala) alongwith
requisite supporting staff/police personnel, to conduct the investigation
expeditiously and submit its status report at the earliest. The said SIT
may specifically and discreetly examine the two earlier Report (i.e. dated
27.12.2011 submitted by Sh. Kunwar Vijay Partap Singh, IPS, and, another
Report dated 31.1.2012 submitted based on its investigations. Any other
records in any office, if the said SIT so considers appropriate, may also
be examined by it accordingly.
Sd/-
AIG /Crime
For Addl. Director General of Police,
Crime, Punjab, Chandigarh.
No. 21960-64/CR-LA dated:27/9/12"
12. The SIT so reconstituted, submitted its report on 29.01.2013 and the
concluding part was as under :-
"In this case as per evidence on file no such facts that attract offence
under section 302 IPC is proved. It is only a case of an accident. In this
case Pardeep Kumar and endavour car driver Zorawar were found guilty and
therefore, offences under section 283, 337, 338, 304 A IPC was proved
against Pardeep Kumar Driver, and offences under section 279,337,338,304
IPC was proved against endavour car driver Zorawar Singh is made out. The
proceedings are required to be initiated against Pardeep Kumar driver and
Zorawar Singh under above said offences. The departmental action may be
taken against ASI Hari Singh due to non-conduction of investigation in
proper manner. During investigation, the case has also been found of an
accident.
The report is submitted."
13. It appears that on 14.02.2013 without any express permission from the
High Court a challan under Section 173 was filed in the concerned Court
with following averments:-
".... From the investigation/enquiry conducted Special Investigation Team,
in this case no such facts/eveidences were noticed from which offence
punishable under section 302 IPC is going to be confirmed. From the upto
dated enquiry/investigation this is made out a case of accident in which
Pardeep Kumar Truck Driver and Endeavour Car Driver Jorawar Singh have been
found accused. Therefore, offence punishable under section 283, 337, 338,
304-IPC against Pardeep Kumar Truck Drier and offence punishable under
section 279,337,338 304-A IPC against endeavour car driver Jorawar Singh
are proved. From the upto date investigation, statements of witnesses,
record, post mortem report etc. offence punishable under section 283, 279,
337, 338, 304-IPC is made out against the accused Truck Driver Pardeep
Kumar and Endeavour car driver Jorawar Singh. So, from Challan under
Section 173 Cr. PC is prepared and submitted your goodself for trial.
Accused entered in column No. 4 be called by issuing summons and given
appropriate punishment, after trial. During trial, witnesses as per list
will give witness who may be called and trial conducted.
Sd/-
Superintendent of Police(D)
Distt. SAS Nagar
14.02.2013"
14. The matter came up before the High Court for final hearing on
21.02.2013 and it was of the view that the SIT was constituted to nullify
the enquiry and report of DIG (Crime). It observed that it was mandatory
duty of the State to implement the report submitted by DIG (Crime) and it
therefore directed the State to act in terms of said report within three
months. The High Court was also pleased to direct that Respondent no.1 be
paid an amount of Rs.50,000/- by way of compensation, initially by the
State which could then be recovered from the erring officers after fixing
the responsibility. With these directions the High Court disposed of
the petition. The Appellants being aggrieved filed the instant
petition for Special Leave to Appeal. While issuing notice this Court was
pleased to direct that pending consideration of the matter, the judgment
and order passed by the High Court shall remain stayed. It was submitted
in support of the petition that the order of the High Court was based on
the report of the DIG, which report itself had recommended further
investigation and thus the SIT was rightly constituted and that once final
report under section 173 of Cr.P.C. was filed, the court could only have
directed further investigation in terms of Section 173 (8) of Criminal
Procedure Code and could not have passed the instant directions. On behalf
of Respondent no.1 it was submitted that the State was not justified in
constituting the SIT, more particularly after the first one was disbanded
and that in the face of the order dated 24.04.2012 challan under section
173 could and ought not to have been filed.
15. Though rival contentions have been raised in pleadings in support of
the respective theories, one suggesting that the incident in question was
an accident while the other projecting it to be a murder, we refrain from
entering into such factual arena, lest it may prejudice the interest of any
of the parties. We are however deeply distressed by the manner in which
the SITs were constituted in the present case and the way the matter has
progressed. The following aspects need a specific mention:- (A) When the
application of Respondent no.1 was being processed by the office of the
High Court and being placed on the judicial side, the State Government on
its own, entrusted the matter to DIG to conduct independent investigation.
With such independent investigation being undertaken, the High Court was
naturally persuaded to wait for its outcome and not to go ahead with the
issue whether the investigation be entrusted to CBI or not. (B) Once that
independent investigation had culminated in the report, the record does not
indicate in what circumstances and under what authority SIT was
constituted. It was complete misreading of the report of the DIG. The DIG
had clearly said that after registering the case under Section 302,
investigation be handed over to independent and impartial agency. However,
no such case was registered. (C) The State had rightly disbanded the SIT
observing that constituting such SIT without any rhyme or reason was of no
avail and ought not to be undertaken unless the High Court had directed so.
It is not clear why and how despite such clear direction to disband, the
SIT could go ahead and finalize its report. (D) The subsequent order dated
24.04.2012 of the High Court clearly settled the position by directing the
State not to file the challan on the basis of the report submitted by the
SIT and in clear terms stated that the investigating agency could proceed
on the basis of the report dated 27.12.2011 of the DIG. It further
directed the authorities to act in compliance of its order. Record again
does not indicate what steps were taken by the authorities from 24.04.2012
and why investigation was not conducted on the basis of the report
submitted by the Deputy Inspector General. (E) In spite of the disbanding
of the earlier SIT and the order of the High Court dated 24.04.2012, the
matter was again considered on the basis of the report of the SIT itself,
leading to the constitution of second SIT under the supervision of same
Shri Kunwar Vijay Partap Singh. Such constitution of the SIT under his
supervision was promptly brought to the notice of the High Court. (F)
However soon thereafter, the SIT was reconstituted leaving out said Shri
Kunwar Vijay Partap Singh. While reconstituting such SIT, copy of the
order was not marked to Respondent no.1 nor was this development brought to
the notice of the High Court. (G) Finally, in the face of clear directions
in the order dated 24.04.2012, challan under section 173 on the basis of
the report of such reconstituted SIT was filed on 14.02.2013. No
permission of the High Court was taken nor was it so intimated.
16. In the circumstances, in our considered view the High Court was
completely justified in leaving out the reports of the SIT from its
consideration and directing the State Government to act in terms of the
report dated 27.12.2011 of Shri Kunwar Vijay Partap Singh, DIG.
Constituting the SIT on the premise that the DGP did not agree with the
report of the DIG or that the DIG himself had recommended further
investigation, was completely incorrect. Once the matter was in seisin of
the High Court, nothing could and ought to have been undertaken without its
express leave. The State therefore had rightly disbanded such SIT. It is
inexplicable how the SIT could go ahead and submit the report, which then
led to constitution of fresh SIT. Here also there was no fairness in
action. Initial constitution of the fresh SIT was with same DIG in command
but was reconstituted without bringing such fact to the notice of the High
Court. And the last straw was filing of the challan under Section 173
Cr.P.C. It was incumbent for the authorities concerned, to act in terms
of the report of the DIG as directed by the High Court in its order dated
24.04.2012 rather than seek to nullify the effect of that order.
Affirming the view taken by the High Court, we dismiss the present appeal
and while doing so, deem it appropriate to pass the following directions:
(A) The challan dated 14.02.2013 filed by the Superintendent of Police,
District SAS Nagar is held illegal and improper and stands withdrawn from
the record of the concerned case.
(B) The crime shall be registered under section 302 IPC in keeping with
the report dated 27.12.2011 of Shri Kunwar Vijay Pratap Singh, DIG (Crimes)
and further investigation shall be undertaken in terms thereof.
(C) The SITs as constituted are held invalidly constituted and the
reports dated 01.03.2012 and 29.01.2013 stand set aside.
(D) We direct the concerned Superintendent of Police to conduct thorough
investigation into the matter. Such investigation must be completely fair
and transparent and shall be free from any interference. We expect the
concerned officer to rise to the occasion and do his job well.
(E) It is left to the concerned Magistrate to consider whether any
further investigation is called for, and if so, in which direction, as and
when the occasion so demands.
(F) Respondent no.1 shall be paid Rs.2,50,000/- by way of compensation
instead of Rs.50,000/- as directed by the High Court. Such compensation
shall first be paid by the State and after fixing the responsibility
regarding officials who were responsible for delaying the process, recover
the same from such officials.
(G) We request the Chief Secretary of the State to inquire into the
matter, the way and the manner in which it was dealt with at various stages
and more particularly with regard to items A to G mentioned in para 15
hereinabove and submit a report to this Court in a sealed cover within two
months from today.
17. Before we part, we must record that we shall not be taken to have
expressed any opinion as regards merits of the matter. We have dealt with
the propriety of constitution of SITs and having set aside the reports
thereof, tried to implement the logical consequence and the order of the
High Court dated 24.04.2012. The matter shall and must be considered on
its own merits at every stage.
18. We thus dismiss the present appeal in the aforesaid terms. The
matter shall however be listed after three months or soon after the receipt
of the Report of the Chief Secretary as stated above for further
directions, if any.
..............................J.
(Anil R. Dave)
..............................J.
(Uday Umesh Lalit)
New Delhi
December 04, 2014
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