Bhim Singh, Mla vs State Of J & K And Ors.

on 22 November, 1985

Supreme Court of India

Bhim Singh, Mla vs State Of J & K And Ors. on 22 November, 1985
Equivalent citations: AIR 1986 SC 494, 1986 CriLJ 192, 1985 (2) SCALE 1117, (1985) 4 SCC 677,
1986 (1) UJ 458 SC
Author: O C Reddy
Bench: O C Reddy, V Khalid
JUDGMENT O. Chinnappa Reddy, J.

1. Shri Bhim Singh, a Member of the Legislative Assembly of Jammu & 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 & 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 & Kashmir. The order of suspension was stayed by the High Court on 9th
September, 1985. On the intervening night of 9th-10th September, 1985, he was proceeding from
Jammu to Srinagar. En route, at about 3.00 AM (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 & Kashmir through the Chief Secretary as the first respondent, the
Chief Minister, the Deputy Chief Minister and the Inspector General of Police, Jammu & Kashmir as
respondents 2, 3 and 4. On September 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 September 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 14lh and that he was produced before a Magistrate for the first time only on the
14th. Thereafter on 24th September, 1985, we issued notice to the Director General of Police, State
of Jammu & Kashmir, Mr. Mir, Superintendent of Police, Anantnag, Mohd. Shafi Rajguru, Inspector
of Police, Amin Amjun, 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 & 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 Anjum, Deputy Superintendent of Police Headquarters. Udhampur and Rajinder Gupta,
Probationery 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 Section
153-A of the Ranbir Penal Code was registered against Shri Bhim Singh on September 9, 1985 at
Police Station Pacca Danga, Jammu on the allegation that he had delivered an inflammatory speech

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 Bhim Singh, Mla vs State Of J & K And Ors. on 22 November, 1985

at a public meeting held near Parade Ground, Jammu at 7.00 P.M. on September 8, 1985. The
office-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 September, 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 & Kashmir. Shri M.A. Mir,
Superintendent of Police, Anantnag has, however, stated in his affidavit that on September 9, 1985
at about 11.30 PM, 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 Section 153-A of
Ranbir Penal Code. According to him, he immediately directed the Office-in-charge cf 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 September, 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 AM, according to Shri Mir, Shri Bhim Singh was
arrested at Qazi 1 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 AM on 10th September, 1985. They reached, according to Mohd. Shafi Laigroo, Batota at
2.00 PM where BhimSingh was provided with lunch. They reached Udhampur at 5.00 PM where
Bhim Singh was provided with lea and finally they reached Jammu city Police Station at 7.30 PM.
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 Anjum, Deputy Superintendent of
Police Headquarters, Udhampnr 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 PM. On 11th September, 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 'September, 1985. Neither the application

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 Bhim Singh, Mla vs State Of J & K And Ors. on 22 November, 1985

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 September, 1985, Shri Khajuria does not state in his
affidavit that Shri Bhim Singh was produced before the Executive Magistrate First Class on 11th
September, 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
September, 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 October, 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 :

Returned in original to the applicant with the remarks that the remand application was moved
before me by the SHO Pacca Danga Jammu on 11th September, 1985 after office hours in the
evening at my residence and the (illegible) remanded the applicant in police custody for a period of
two days alone.

On the expiry of the remand of two days granted by the Executive Magistrate, a further remand was
obtained for one day, this time, not from the Executive Magistrate First Class, but, from the
Sub-Judge. It was probably thought not wise to go before the same Magistrate and ask for a second
remand. The application made in Urdu to the Sub-Judge with the endorsement of the Sub Judge has
also been filed as an annexure to (he Affidavit of Shri Khajuria. The endorsement of the Sub Judge
reads :

Application for police remand has been moved by Shri Bansi Lal (illegible) S.H.O. P/S Pacca Dana
with the submission that the accused Shri Bhim Singh is sick (Medical Certificate attached) and he
be removed to the Police lock up as the investigation in the case is still in progress.

Perused the police diaries with the SHO and also promised the medical (illegible) examination slip.
The accused is authorised to be left in police lock up for one day. The accused be produced in the
court by tomorrow for further necessary remand orders.

The endorsement is signed by the Sub Judge and is dated 13th September, 1985. We have again to
mention here that Shri Bhim Singh requested the Magistrate to give him a copy of the Medical
certificate purported to have been submitted by the S.H.O. Pacca Danga. On this application, the
Sub Judge made the following endorsement :

Shri Bhim Singh has moved an application requesting this court to certify the time when the police
remand application was moved before me by police P/S Pacca Danga on 13.9.85. The application is
also accompanied with a photostate copy of the remand order passed by me on 13.9.1985 as a duty
Magistrate. The application in original was forwarded to the I/C police Station Pacca Danga for
report and production of case diaries of the case for perusal, but it has been reported that the case
diaries are with SHO who is out on law and order duty.

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 Bhim Singh, Mla vs State Of J & K And Ors. on 22 November, 1985

From the perusal of the photostate copies of the remand order and from my recollection, it is
certified that the remand application was moved before me at my residence after court hours in the
evening.

Shri Bhim Singh swears in his rejoinder affidavit that he was not produced before the Sub Judge on
13th, nor was he examined at any time by any doctor. Shri Khajuria in his affidavit again uses very
careful language and says, "On the expiry of this remand, an application for further remand was
submitted before the Sub Judge (Judicial Magistrate First class) on 13th September, 1985, who
extended the remand by one day". Shri Khajuria does not say a word about Shri Bhim Singh having
been examined by any doctor. He makes no reference to the production of any medical certificate
before the Sub Judge. As already mentioned, the officer-in-charge of the Pacca Danga police Station
has not filed any affidavit before us. Thereafter on 14th September, 1985, Shri Bhim Singh was
produced before the Sub Judge and was remanded to judicial custody for two days with a direction
to produce him before the Sessions Judge, Jammu on 16th September, 1985. He was accordingly
taken to the court of the Sessions Judge on 16th September, 1985, but as the Sessions Judge was
absent, he was produced before the Additional Sessions Judge. He was released on bail on his
personal bond by the Additional Sessions Judge. That he was produced before the Magistrate on
14th, remanded to judicial custody for two days, produced before the Additional Sessions Judge on
16th and released on bail are facts which are not disputed by Shri Bhim Singh. In his affidavit when
he reference to the events of 14th and 16th September, 1985, Shri Khajuria takes good care to use the
words "produced before the Sub Judge" and "produced before the Additional Sessions Judge". As
mentioned by us earlier, with reference to the events of 11th and 13th September, 1985, Shri
Khajuria very carefully refrained from using the word "produced". He merely said 'remand was
obtained'. Shri Bhim Singh in his supplemental and rejoinder affidavits has stated certain facts
relating to alleged further harassment by the police. We are not concerned with those further facts
for the purposes of this case. We are only concerned with the detention of Shri Bhim Singh from
3.00AM on 10th September, 1985 until he was produced before the Sub Judge on 14th September,
1985. The two remand orders said to have been made by the Executive Magistrate First Class and
Sub Judge on 11th and 13th September, 1985 respectively do not contain any statement that Shri
Bhim Singh was produced either before the Executive Magistrate First Class or before the Sub
Judge. The applications for remand also do not contain any statement that Shri Bhim Singh was
being produced before the Magistrate or the Sub Judge. Shri. Khajuria, the Inspector General of
police has very carefully chosen his words and stated in the affidavit that remand orders were
obtained. He refrained from stating that Shri Bhim Singh was produced before the Magistrate or the
Sub Judge on 11th and 13th. The Medical Certificate referred to in the application dated 13th
September, 1985 has also not been produced and Shri Khajuria makes no reference to it in his
affidavit. In addition we have the important circumstance that no affidavit of the officer in charge of
the Police Station Pacca Danga has been filed before us. Nor has the affidavit of the officer, who
arrested Shri Bhim Singh been filed before us. At the time of hearing the petition on 19th November,
1985, Shri E.G. Aggarwal stated to us that the affidavits of the two police officers had been got ready
but were mislaid. He tried to show us some photo-stat copies of the alleged affidavits and prayed
that the case might be adjourned for filing the affidavits of the two police officers. We refused to
accede to the request. There was ample time for the respondents to file the affidavits of the two
police officers after we issued notice to the respon-dants. It is not disputed that right from the

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 Bhim Singh, Mla vs State Of J & K And Ors. on 22 November, 1985

beginning, they were aware of the writ petition filed in this court. The affidavits of Shri Khajuria and
others were filed as far back as 16th October, 1985 and there was no reason whatsoever for not filing
the affidavits of the two police officers at that the time. When the complaint was of illegal arrest and
detention, the least one would expect the respondents to do is to file the affidavits of the officer who
arrested the petitioner and the officer who produced him before the Magistrate for the purpose of
obtaining orders of remand. Instead of filing their affdavits, several inconsequential affidavits were
filed perhaps only to confuse the issue. Shri Khajuria, the Inspector General of police filed a lengthy
affidavit containing statements of fact, most of which he could not be personally aware. However, he
chose to use careful language, as pointed out by us, whenever he referred to the remand of Shri
Bhim Singh or his production before a Magistrate or Sub Judge. We are convinced that the failure to
file the affidavits of the officers, who arrested Shri Bhim Singh and the Sub-Inspector, incharge of
Pacca Danga Police Station was deliberate. They were to be kept back until there was dire necessity.
We do not have the slightest hesitation in holding that Shri Bhim Singh was not produced before the
Executive Magistrate First Class on 11th and was not produced before the Sub Judge on 13th. Orders
of remand were obtained from the Executive Magistrate and the Sub Judge on the application of the
police officers without the production of Shri Bhim Singh before them. The manner in which the
orders were obtained, i.e., at the residence of the Magistrate and the Sub Judge after office hours,
indicates the surreptitious nature of the conduct of the police. The Executive Magistrate and the
Sub-judge do not at all seen to have been concerned that the person whom they were remanding to
custody had not been produced before them. They acted in a very casual way and we consider it a
great pity that they acted without any sense of responsibility or genuine concern for the liberty of the
subject. The police officers, of course, acted deliberately and mala fide and the Magistrate and the
Sub Judge aided them either by colluding with them or by their casual attitude. We do not have any
doubt that Shri Bhim Singh was not produced either before the Magistrate on 11th or before the Sub
Judge on 13th, though he has arrested in the early hours of the morning of 10th. There certainly was
a gross violation of Shri Bhim Singh's constitutional rights under Articles 21 and 22(2). Earlier we
referred to the circumstance that though Shri Khajuria, Inspector General of Police stated that
information was sent to Superintendent of Police, Anantnag through the Police Control Room,
Srinagar on 10th September, 1985, Shri Mir, the Superintendent of Police, Anantnag stated that on
9th September, 1985 at 11.30 P.M. he was informed by the Police Control Room, Srinagar that Shri
Bhim Singh was required to be apprehended as he was wanted in a case registered Under Section
153-A of the Ranbir Penal Code. Nobody cared to explain why it was thought that Bhim Singh would
pass through Qazi Kund in Anantnag District on the night of September 9-10. Nobody thought fit to
explain how and why the Senior Superintendent of Police, Udhampur came to direct his officers to
escort Bhim Singh. It has not been explained how and when the Senior Superintendent of Police,
Udhampur came to know of the arrest of Bhim Singh and who required him to arrange for the "safe
passage" of Bhim Singh through Udhampur District. To our minds, it appears as if it was expected
that Bhim Singh would proceed from Jammu to Srinagar on the intervening night of 9-10
September, 1985 as there was a meeting of the Assembly on 11th September and the police were
alerted to arrest him when sighted en route to Srinagar and take him back to prevent him from
proceeding to Srinagar to attend the the session of the Legislative Assembly. We can only say that
the Police Officers acted in a most high-handed way. We do not wish to use stronger words to
condemn the authoritarian acts of the police. If the personal liberty of a Member of the Legislative
Assembly is to be played with in this fashion, one can only wonder what may happen to lesser

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 Bhim Singh, Mla vs State Of J & K And Ors. on 22 November, 1985

mortals ! Police Officers who are the custodians of law and order should have the greatest respect for
the personal liberty of citizens and should not flout the laws by stooping to such bizarre acts of
lawlessness. Custodians of law and order should not become depredators of civil liberties. Their duty
is to protect and not to abduct. 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 01 otherwise is now established by the
decisions of this court in Rudul Sah v. State of Bihar and Anr. 1983 (3) SCR 508 and Sebestian M.
Hongray v. Union of India 1984 AIR SC 1026. When a person comes to us with the complaint that he
has been arrested and imprisoned with mischievous 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.

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