'Blemished Investigation With Political Maneuvering': Punjab & Haryana High Orders Re-Investigation In Kotkapura Firing Case

A Single Bench of Justice Rajbir Sehrawat noted that the Police firing was neither unprovoked nor intended against peaceful protestors, as otherwise claimed by Singh in his challan report. It further noted that the firing order was passed by the magistrate present on the spot, only after assessing the situation that had arisen on the spot.

It noted that the protestors chased and attacked the police, including with the swords and it is thereafter that the Magistrate granted permission to use tear gas in the first instance, lathi charge thereafter, and the gun firing at the third stage.

"The firing is stated to have taken place at the third stage, after the third order passed by the civil authorities and not in the first instance. However, before that; in the above description itself; the protestors are recorded to have chased and attacked the police, including with the swords. Therefore the conclusion that the protestors were sitting peacefully when the police started firing; and also the conclusion that firing by the police was unprovoked; is against the record even on this count," the Single Judge found.

Background

The firing incident dates back to the year 2015 during protests against alleged sacrilege qua Guru Granth Sahib, the Holy Book of Sikhs.

During the process of maintaining the law and order situation, the police are stated to have fired upon the protestors at Kotkapura, where some police persons were seriously injured, one protestor allegedly received grievous gunshot injury and some other persons allegedly received minor injuries.

The investigation was handed over to a SIT headed by Singh, which submitted in its final report against some police official, along with allegations of conspiracy with higher police officials and the higher political functionaries.

Singh alleged that there was a conspiracy between the then CM Badal, the then Deputy Chief Minister, the then senior police officers and the Petitioner-accused, on the basis of the call record showing the Chief Minister talking to the DGP and the District Administration, as well as, to his political representative in the area.

Findings

In its order, the Single Judge observed that mere factum of a Chief Minister talking to the District Administration or to the DGP of the State in the times of a situation where the law and order is disturbed, in itself, would not be sufficient to infer his conspiracy to kill or injure anybody through firing by the police upon the protestors, unless there is some other material collected by the investigating officer to establish prior meeting of minds for conspiracy.

"If mere talking of the Chief Minister, or for that matter by a minister with his DGP or the District Administration, is taken as a criminal conspiracy then any Chief Minister can be held criminally liable every day for any wrong-doing resulting from wrong functioning of district officials," Justice Sehrawat remarked.

The Judge further said, the fact that the then Chief Minister was in contact with the district officials, rather, shows that he was alive to the situation and to his responsibility as a Chief Minister; even in the odd hours.

"Had the then Chief Minister not been in contact with the District Administration and his DGP in such a critical situation, then he would have run the risk of being branded as another Nero who played fiddle when the Rome was burning," the Judge said.

Blemished Investigation

The Single Bench has ruled that Singh had gone to the extent of manufacturing the statements of witnesses to suit his designs, by recording differing statements of same witnesses in these two FIRs; with convenient omissions in their statements recorded under section 161 CrPC, qua the violence by the protestors.

This, the Court noted, had not happened qua one or two stray witnesses. Rather several police officials had changed their statements to further the allegations made in the impugned FIR by going totally contrary to the record and in contravention of their earlier statements.

"The investigation carried out by the Respondent No.3 [Singh] is not free from blemish. His personal malice and malafide functioning by totally usurping the powers of SIT constituted in the first instance, has been duly demonstrated on record," the Bench noted.

The Judge was of the opinion that Singh misused his official position to further his designs and indulged in theatrics and political maneuvering.

The order stated,

"Respondent No. 3 has been manipulating the statements as it suits him in a particular case despite the witnesses being the same and the incident being the same… Hence, the integrity of the investigation totally stands demolished because of this manipulation on the part of the respondent No.3 while recording the selective statements of alleged witnesses."

Societal pressure to hold administration guilty

The Bench noted that the investigation process is influenced by what some "hyper-charged" section of the society pressed for.

It concluded that public pressure to get the alleged erring police officials convicted appears to have adversely affected the fairness of the investigation and as a result, the fairness of investigation stands vitiated.

"Howsoever justified and whatever be the sentiments of the public; that cannot be any substitute for law. The same cannot be permitted to permeate and influence the investigation and adjudication. The investigation has to be totally fair, impartial, rational and comprehensive which has to be conducted while following the statutory provisions and a just and fair procedure," the Bench cautioned the investigating authorities.

Political inclinations during investigation

"The political interest of the current dispensation in the state qua the investigation; and the political theatrics of respondent No.3 during the instant investigation; by going to media and by repeatedly highlighting allegations against the outgoing politicians without filing challan against them; intended to create a narrative in favour of one political party and against the other party during the election process; has duly been established as per the record."

Re-investigation

The Court was of the considered opinion that this is one of the rare cases where it is under duty to step-in to prevent miscarriage of justice, instil confidence in the investigation and also pre-empt the misuse of the process of the court, by quashing the investigation and the consequent report under section 173 CrPC.

The Court has ordered for a fresh investigation into the incident by issuing the following directions:

• The State Government shall constitute a SIT of 3 senior IPS officers from the State of Punjab, which shall not include Kunwar Vijay Pratap Singh, and which shall include at least 1 officer senior to Singh, to conduct the investigation;
• There shall be no interference from any quarter; internal or external; with this SIT qua the investigation. This SIT shall not report to any State executive or police authority qua the investigation in question. It shall report only to the concerned Magistrate, in accordance with law;
• The SIT so constituted by the State Government shall work jointly. All the members of the SIT shall put their signatures on all the proceedings of the investigation as a mark of the fact that they have agreed to the said investigation;
• Once constituted, that SIT shall not be changed by the State Government except in case of retirement, incapacity or death of the officer concerned;
• The final report of investigation shall be filed jointly as a team; under signatures of all the members of the SIT, who shall also be cited as witnesses in the list as the investigating officers;
• The members of SIT shall not leak any part of the investigation, before filing the final report before the concerned magistrate. They shall not interact with media qua any aspect of investigation.

Right to protest

Before parting, the Bench reiterated that the Constitution of India provides right of speech and expression, as well as, the right to peaceful assembly. However, these rights are not absolute rights and have been made subject to certain restrictions.

Thus, in exercise of rights to protest, the protesters can neither resort to violence nor can they occupy a public place permanently.

The Bench further made it clear that in case the protests go out of hand, then for controlling the situation, law permits even use of force by the authorities.

However, there are established procedures and protocols for use of force by the authorities, including by the police, it cautioned.

"The protesters cannot claim to have any legitimate expectations that police would never evict them from the place; where they have assembled in violation of the directions of the authorities and created a law and order problem," the Bench made it clear.

It cautiously added that the Police also have to use the force within the authority prescribed for them and as per the procedures and protocols put in place for the same.

"While use of force by the police, if the same is within the authority and as per established procedures and protocols, may not bring any criminal consequences to the police merely because of the fact that some protester got injury of any kind during that use of force, yet, if there is deliberate excessive use of force by the police; in violation of authority and protocols; and there is mens rea on the part of a particular officer using the force; to cause injury to anybody; and there is a resultant injury caused by such officer, then such officer would also be liable to face the criminal consequences; at par with any other person who is accused of a similar crime," the Bench ruled.

Case Title: Gurdeep Singh v. State of Punjab & Ors.

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