Anticipatory Bail To Retd. DGP Cancelled Upon Addition Of Murder Charge To FIR In 1991 Custodial Death Case [Read Order]

An Additional Sessions Judge, Mohali on Tuesday rejected the plea for anticipatory bail by former state DGP S. S. Saini in connection with a 1991 custodial death case, in the wake of the recent addition of section 302 IPC in the FIR against him. On May 11, an equivalent court had granted anticipatory bail to Saini in the initial FIR, prior to the addition of the murder charge.

ASG Rajnish Garg appreciated that it is the admitted case of both the parties that initially the aforesaid FIR was registered against the applicant-accused under sections 364 (kidnapping/ abducting in order to murder), 201 (disappearance of evidence, false infomation), 344 (wrongful confinement), 330 (voluntarily causing hurt to extort confession etc), 219 ( making of report by public servant which he knows to be contrary to law) and 120 B, IPC and the applicant accused was granted anticipatory bail in the aforesaid offences. Noting that the present bail application has been filed for grant of anticipatory bail as offence under section 302IPC has been added to the list of offences, the court deemed it necessary to look into the evidence collected by the investigating agency after grant of anticipatory bail on May 11 and on the basis of which the offence under section 302 has been added.

The judge observed that the police record shows that after grant of anticipatory bail to the applicant, police got recorded 2 statements under sections 164 CRPC, both stating that on the intervening night of 13th/14th December 1991, the deceased was tortured in the police Station of sector 17, Chandigarh. He was crying out of pain due to the torture given to him and blood was oozing out from his injuries. It is further stated that the deceased was tortured by the applicant-accused himself and other police officials under his instructions.

Two of the accused, namely ASI Kuldeep Singh and ASI Jagir Singh, have became approvers and their statements were also recorded under section 164. It was stated by ASI Kuldeep Singh that the deceased was picked up from his house and a FIR was registered against the deceased under the instructions of the applicant-accused. ASI Jagir Singh, who had gone to the concerned police station in connection with some work, had found the deceased being tortured by the applicant-accused and his police team. Both of them stated that 2/3 days after 13 December, 1991, they came to know that the deceased had died due to the injury suffered by him and they were asked by the applicant-accused to go to the Qadian police stations to cover up the matter and to show that the deceased had escaped from police custody.

The judge further noted that the Agency has also recorded statements of at least 44 police officials who were posted at police station Qadian when the deceased allegedly escaped from police custody. After seeing the photograph of the deceased on the police file, all of them stated that he was not the same person who was brought to the police station Qadian by the Chandigarh police. Thereby, it was not the deceased who had escaped from police custody.

"Therefore, the investigating agency has collected sufficient evidence to establish prima facie involvement of the applicant accused in the abduction and murder of the deceased. Without doubt, veracity of the said witnesses and genuineness of statements made by them shall be determined during trial under cross-examination, but at this stage there is prima facie evidence against the accused which is to be considered while deciding bail application", concluded the judge.

The judge noted that after the deceased was unlawfully abducted and killed in custody by the accused, thereafter, his late father, an IAS officer, ran from pillar to post to seek justice but no action could be taken due to the influence and power of the accused. Ultimately, in the end of 2015, one ex-police official meet the disclosure about inhuman torture given to the present complainant's brother and elimination of various persons by the accused and his team. His disclosure was published in the national magazine 'Outlook' in December 2015. From there, they came to know about the illegal activities conducted by the police under the instructions of the accused and the inhuman torture given to the deceased. They were believing that some action would be taken by the government machinery after the said closure but no action was taken due to the influence of the accused. Now after the retirement of the accused, they have resumed courage to file the present complaint after obtaining more details. With these allegations the FIR was registered against the accused under sections 364, 201, 344, 330, 219 and 120 B of the IPC. An application for anticipatory bail in connection with the aforesaid offences was allowed by another additional sessions judge on May 11. The further investigation was conducted by the police and two of the accused namely ASI Jagir Singh and ASI Kuldeep Singh turned approvers and gave statements under section 164 CRPC alleging that the deceased was given inhuman torture under the instructions of the applicant accused which resulted in the death of the deceased and that they had gone to Qadian as per instructions of the accused to cover up the offense. The statements of some more witnesses were recorded and the offence under section 302 IPC was added to the list of offences. Hence, this application for grant of anticipatory bail.

"No doubt, there is an unprecedented delay of 29 years in getting the case registered, but that is not sufficient to falsify the entire prosecution case at the threshold. Court cannot lose sight of the fact that the applicant accused himself remained at the helm of affairs from the year 1991 when he was posted as Senior Superintendent of Police, Chandigarh till June, 2018 when he retired as DGP", said the Judge.

Remarking that it was not easy to take any action against him during that period, the judge appreciated that the Legislation in its wisdom has not fixed any limitation for the offences punishable with imprisonment of more than three years. "It means that offences punishable with a sentence of more than three years can be brought to light at any time and the FIR cannot be discarded on this ground", asserted the judge. The ASG further observed that an anticipatory bail was granted to the accused, there was no direct evidence against him and rather the FIR registered mainly on the basis of suspicion. "This is the reason that he was granted bail by the said court due to delay in getting lodged the FIR. Once that is prima facie direct evidence on record to show direct or indirect involvement of the accused in the occurrence, delay in lodging the FIR or political vendetta, if any, as alleged by the applicant-accused, is to be determined during trial and are inconsequential at this state", concluded the judge.

The counsel for the applicant accused heavily argued that earlier an FIR was registered against the accused regarding the same occurrence and the same was quashed by the Supreme Court. Hence, now the applicant accused cannot be tried for the same offence again as it would amount to double jeopardy. "The earlier FIR registered against the accused was quashed by the Supreme Court on technical grounds, observing that the procedure adopted by the High Court for getting the FiR registered was not correct. However, liberty was granted to the applicant, that is, the father of the deceased to take recourse to fresh proceedings, if permissible under law. The apex court had not quashed the FIR on merits. Had it been the intention of the apex court to put an end to the matter, it would have finally disposed of the matter without any such liberty", opined the judge.

The judge expressed that the present Application has been filed after addition of offence under section 302 IPC and that certainly more evidence has been collected by the investigating agency. "Once the new and grievous offence is added to the list of offences, the court can reconsider the matter in view of the new circumstances", ruled the judge in response to the contention that an equivalent court has already granted anticipatory bail to be accused taking into consideration the facts and circumstances of the case and that this court cannot recall a review the order passed by it equivalent court.

It is held that there is official and prima facie evidence on the record to show direct or indirect involvement of the accused in the abduction and murder of the deceased, who was in custody, and therefore, the deceased had died in police custody. The judge reiterated that death in police custody is one of the worst kinds of crimes in a civilised society and the court must deal with such cases in a realistic manner and with sensitivity.

The judge was also of the view that the Custodial interrogation of the applicant accused is required to search the dead body of the victim, to know the manner in which the body was disposed of and weapon of offence used for committing the crime. "It would not be out of place to mention here that the applicant accused, being a retired DGP, must be wielding great influence in the police department as most of the officials of the department have worked under him", said the judge.

The judge proceeded to state in view of the above observations, the applicant accused is guilty of a heinous crime and does not deserve extraordinary relief of anticipatory bail, his custodial interrogation being necessary to further investigate into the matter.

Click Here To Download Order

[Read Order]