BHIM SINGH MLA Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) Shri Bhim Singh, a Member of the Legislative Assembly of Jammu and Kashmir, incurred the wrath of the powers that be. They were bent upon preventing him from attending the Session of the Legislative Assembly of Jammu and Kashmir, which was to meet on 11th September, 1985. That appears to be the only inference that we can draw from the circumstances of the case to which we shall now refer. On August 17, 1985, the opening day of the Budget Session of the Legislative Assembly, Shri Bhim Singh was suspended from the Assembly. He questioned the suspension in the High Court of Jammu and. Kashmir. The order of suspension was stayed by the High Court on 9th September, 1985. Or. the intervening night of 9th- 10th September, 1985, he was proceeding from Jammu to Srinagar. En route, at about 3.00 A. M. (on 10th), he was arrested at a place called Qazi Kund about 70 kms. from Srinagar. He was taken away by the police. As it was not known where he had been taken away and as the efforts to trace him proved futile, his wife Smt. Jayamala, acting on his behalf, filed the present application for the issue of a writ to direct the respondents to produce Shri Bhim Singh before the Court, to declare his detention illegal and to set him at liberty. She impleaded the State of Jammu and Kashmir through the Chief Secretary as the first respondent the Chief Minister, the Deputy Chief Minister and the Inspector General of Police, Jammu and Kashmir as respondents 2, 3 and 4. On Sept. 13, 1985, we directed notice to be issued to the respondents and we also directed the Inspector General of Police to inform Smt Jayamala where Shri Bhim Singh was kept in custody. On Sept. 16, 1985, Shri Bhim Singh was released on bail by the learned Additional Sessions Judge of Jammu before whom he was produced. Shri Bhim Singh filed a supplementary affidavit on 20th September, 1985 stating more facts in addition to what had already been stated by Smt. Jayamala in the petition. He categorically asserted that he was kept in police lock up from 10th to 14th and that he was produced before a Magistrate for the first time only on the l4th. Thereafter on 24th Sept, 1985, we issued notice to the Director General of Police, State of Jammu and Kashmir, Mr. Mir, Superintendent of Police, Anantnag, Mohd. Shafi Rajguru, Inspector of Police, Amin Amjum, Deputy Superintendent of Police, Udhampur, Gupta, Deputy Superintendent of Police, Jhajar Kolli and the Officer-in-charge of Police Station, Satwari A counter-affidavit has been filed on behalf of the State of Jammu and Kashmir by Abdul Qadir Parrey. Affidavits have also been filed by M. M. Khajuria, Inspector General of Police, M. A. Mir, Superintendent of Police, Anantnag, Mohd. Shafi Laigroo, Inspector of Police, District Police Lines, Anantnag, Mohd. Amin Amjum, Deputy Superintendent of Police Headquarters, Udhampur and Rajinder Gupta, Probationary Deputy Superintendent of Police, Udhampur. Shri Bhim Singh has. also filed a rejoinder affidavit.

(2.) From the affidavits filed by the several police officers, it transpires that an FIR under S. 153A of the Ranbir Penal Code was registered against Shri Bhim Singh on Sept. 9, 1985 at Police Station, Pacca Danga, Jammu on the allegation that he had delivered an inflammatory speech at a public meeting held near Parade Ground, Jammu at 7.00 P. M. on Sept. 8, 1985. The Officer-in-charge of Police Station, Pacca Danga brought the matter to the notice of the Senior Superintendent of Police, Jammu, who in turn informed the Deputy Inspector General of Police of Jammu range. On 10th Sept., 1985, requisition for the arrest of Shri Bhim Singh was sent to the Superintendent of Police, Anantnag through. the Police Control Room Srinagar. This fact is sworn to by Shri M. M. Khajuria, Inspector General of Police, Jammu and Kashmir. Shri M. A. Mir, Superintendent of Police, Anantnag has, however, stated in his affidavit that on Sept. 9, 1985 at about 11.30 P.M. he was informed by the Police Control Room Srinagar that Shri Bhim Singh MLA was required to be apprehended as he was wanted in a case registered under S. 153A of Ranbir Penal Code According to him he immediately directed the Office-in-charge of Police Station, Qazi Kund that Shri Bhim Singh may be apprehended as and when he reached his jurisdiction. He further instructed him that he should be brought to the District Headquarters, Anantnag after his arrest. These statements are obviously untrue in view of the affidavit of Shri Khajuria, Inspector General of Police that the information to the Superintendent of Police, Anantnag was conveyed through the Police Control Room, Srinagar on 10th Sept., 1985. Shri Mir has not chosen to explain why he expected Shri Bhim Singh to pass through Qazi Kund that night. Quite obviously even before he had received any information from the Police Control Room about the alleged case registered against Shri Bhim Singh Shri Mir had instructed the Officer-in-charge, Police Station, Qazi Kund to arrest Shri Bhim Singh if he came within his jurisdiction. Whether he did it on his own and if so, for what reason or whether he did it on other instructions received by him is a matter which requires our consideration. At about 3.00 A. M., according to Shri Mir, Shri Bhim Singh was arrested at Qazi Kund by the Officer- in- charge of Police Station, Qazi Kund and brought to the District Headquarters where it appears Shri Bhim Singh was provided with facilities for rest, wash breakfast, etc. It is necessary to mention here that no affidavit has been filed before us by the Officer-in-charge of Police Station, Qazi Kund, the officer who arrested Shri Bhim Singh It appears that under the orders of the Superintendent of Police, Anantnag, Shri Bhim Singh was taken from Anantnag by Shafi Laigroo, Inspector of Police, District Police Lines, Anantnag in a Matador at about 7.30 A.M. on 10th September, 1985. They reached according to Mohd Shafi Laigroo, Batota at 2.00 P.M. where Bhim Singh was provided with lunch. They reached Udhampur at 5.00 P. M. where Bhim Singh was provided with tea and finally they reached Jammu city Police Station at 7.30 P.M. There they learnt that Bhim Singh was wanted in connection with a case registered by the police of Pacca Danga Station. He was, therefore. taken to Pacca Danga Police Station and handed over to the Officer-in-charge of Pacca Danga Police Station. Mohd. Amin Amjum. Deputy Superintendent of Police Headquarters, Udhampur and Shri Rajender Gupta, Probationary Deputy Superintendent of Police, Udhampur were directed by the Senior Superintendent of Police, Udhampur to see to the safe passage of Bhim Singh through Udhampur District. They were informed that Bhim Singh was taken from Anantnag to Jammu in a Matador. So they followed the Matador in which Bhim Singh was being taken from Chenani Police Station to Jammu and thereafter returned to their respective stations. According to the Inspector General of Police, Shri Bhim Singh was taken to Police Station Pacca Danga at about 9.30 P. M. On 11th Sept. 1985, a remand to police custody for two days was obtained from an Executive Magistrate First Class. A copy of the application for remand made in Urdu with the endorsement of the Executive Magistrate First Class has been filed as an annexure to the affidavit of Shri Khazuria. The endorsement says, "Remanded for two days with effect from 11th instant." It is signed by the Magistrate and dated 11th Sept., 1985. Neither the application nor the endorsement shows that Shri Bhim Singh was produced before the Magistrate when remand was sought. Shri Bhim Singh expressly denied that he was produced before any Magistrate on 11th With reference to the remand obtained on 11th Sept., 1985, Shri Khajuria does not state in his affidavit that Shri Bhim Singh was produced before the Executive Magistrate, First Class on 11th Sept I 1985. But in very careful and guarded language he says, "A remand to police custody for two days was obtained by Pacca Danga Police Station from Executive Magistrate, First Class on 11th Sept., 1985." The Officer-in-charge Police Station Pacca Danga has not filed any affidavit. It has to be mentioned here that Shri Bhim Singh moved an application before the Executive Magistrate on 24th Oct., 1985 to be informed as to the time when remand was obtained from the Magistrate. The Magistrate made the following endorsement on the application of Shri Bhim Singh:

(3.) However the two police officers, the one who arrested him and the one who obtained the orders of remand, are but minions in the lower rungs of the ladder. We do not have the slightest doubt that the responsibility lies elsewhere and with the higher echelons of the Government of Jammu and Kashmir but it is not possible to say precisely where and with whom, on the material now before us. We have no doubt that the constitutional rights of Shri Bhim Singh were violated with impunity. Since he is now not in detention, there is no need to make any order to set him at liberty, but suitably and adequately compensated, he must be. That we have the right to award monetary compensation by way of exemplary costs or otherwise is now established by the decisions of this Court in Rudul Sah v. State of Bihar, (1983) 3 SCR 508 and Sebastian M. Hongray v. Union of India, AIR 1984 SC 1026. When a person comes to us with the complaint that he has been arrested and imprisoned with mischevous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free. In appropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation. We consider this an appropriate case. We direct the first respondent, the State of Jammu and Kashmir to pay to Shri Bhim Singh a sum of Rs. 50,000/- within two months from today. The amount will be deposited with the Registrar of this Court and paid to Shri Bhim Singh.