CWP No.

17459 of 2019 (O&M) with

CWP No. 17460 of 2019 (O& M) -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

*****
201
===============
VIRTUAL COURT
===============

CWP No. 17459 of 2019 (O&M)

Date of Decision :9.4.2021

Gurdeep Singh ...... Petitioner

Versus

State of Punjab and others ........Respondents

2. CWP No. 17460 of 2019 (O&M)

Rashpal Singh ...... Petitioner

Versus

State of Punjab and others ........Respondents

CORAM : HON'BLE MR. JUSTICE RAJBIR SEHRAWAT

***
Present : Mr. R. S. Cheema, Senior Advocate with
Mr. K. S. Nalwa, Advocate and
Mr. A. S. Cheema, Advocate and
Mr. Chakitan V. S. Papta, Advocate
for the petitioner in CWP-17459-2019.

Mr. Ashok Aggarwal, Senior Advocate with

Mr. K. S. Nalwa, Advocate and
Mr. Chakitan V. S. Papta, Advocate
for the petitioner in CWP-17460-2019.

Mr. Sidharth Ludhra, Senior Advocate with

Mr. Gaurav Garg Dhuriwala, Sr. DAG, Punjab;
Ms. Diya Sodhi, AAG, Punjab;
Mr. Karan Bharihoke, Advocate;
Ms. Anusha Nagarajan, Advocate;
Ms. Shubhangini Jain, Advocate and
Mr. Pankaj Singhal, Advocate for the State of Punjab.

Mr. R. S. Bains, Advocate and

Mr. M. S. Chauhan, Advocate for respondent No.5

Mr. Sumeet Goel, Advocate for respondent No.6-CBI.

***
RAJ KUMAR
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integrity of this document
 CWP No. 17459 of 2019 (O&M) with
CWP No. 17460 of 2019 (O& M) -2-

RAJBIR SEHRAWAT :

This judgment/order shall dispose of the abovesaid two writ petitions.

At the outset, it deserves mention that three incidents of alleged

sacrilege qua Guru Granth Sahib; the Holy Book of Sikhs; are stated to have taken

place from June to October 2015 in district Faridkot in Punjab. Some protests were

held against the alleged sacrilege. During the process of maintaining the law and

order situation the police are stated to have fired upon the protestors at village

Behbal Kalan under Police Station Bajakhana, District Fridkot; wherein two

persons are alleged to have died, and also at Kotkapura; where some police persons

were seriously injured and one protestor is alleged to have received grievous gun-

shot injury on thigh and some other persons are alleged to have received minor

injuries. For all those incidents; at least 7 FIRs have been registered. Some FIRs

were from the side of Police and some were from the side of protestors. These

FIRs are as under:-

(A) Alleged Sacrilege FIRs

(i) FIR No. 63 dated 2.6.2015, Police Station Bajakhana.

(ii) FIR No. 117 dated 25.9.2015 Police Station Bajakhana.

(iii) FIR No. 128 dated 12.10.2015 Police Station Bajakhana.

(B) FIRs qua alleged violence and firing at Behbal Kalan -

Death of 2 Persons:-

(i) FIR No. 129 dated 14.10.2015 Police Station Bajakhana.

(ii) FIR No.130 Dated 21-10-2015 Police Station Bajakhana

(C) FIRs qua alleged violence and firing at Kotkapura –

Injuries to the Police and the Protestors:-

(i) FIR No. 192 Dated 14.10.2015 Police Station City Kotkapura.

(ii) FIR No. 129 Dated 07.08.2018 Police Station City Kotkapura

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In the present petitions the incidents and FIRs relating to alleged

Sacrilege mentioned at (A) above; and the incident of violence and FIRs

mentioned at (B) regarding death of 2 persons, are not involved. These petitions

involve only the incident of violence and the consequent FIRs mentioned at (C)

above, which pertain to injuries only; to the police, as well as, to the protesters.

Therefore this court is not considering or deciding anything regarding the FIRs

mentioned above at (A) relating to Sacrilege or regarding the FIRs mentioned at

(B) relating to Deaths. This Court is considering the matter involving the incident

of Kotkapura only, which involves only the FIRs mentioned at (C) above; and

which relate only to injuries suffered or caused in the incident at Kotkapura. Any

reference or observation qua the cases mentioned at (A) or (B) above; would only

be incidental or for collateral purpose of decision of the present petition.

The identical prayers made in both the present petitions are as under:

(i) To issue a writ of certiorari for quashing FIR No. 129

dated 7.8.2018, under Sections 307, 326, 324, 323, 341,

201, 218, 120B and 34 IPC and Section 27 of the Arms

Act, registered at Police Station City Kotkapura, District

Faridkot (Annexure P-9) being illegal as FIR for the

same transaction already stands registered bearing FIR

No. 192 dated 14.10.2015 under Sections 307, 353, 332,

333, 323, 382, 435, 283, 120B, 148 and 149 IPC, Section

25 of Arms Act and Sections 3 and 4 of Prevention of

Damage to Public Property Act, 1984 (Annexure P-7) at

Police Station City Kotkapura, District Faridkot.

(ii) To declare that the ongoing investigation in subsequent

FIR No. 129 dated 7.8.2018 (Annexure P-9) by the SIT is

illegal and impermissible and to quash the reports under

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 CWP No. 17459 of 2019 (O&M) with
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Section 173 Cr.P.C. dated 23.5.2019 (Annexure P-13)

and dated 6.6.2019 (Annexure P-14), presented in the

said FIR.

(iii) To issue a writ of mandamus directing the investigating

agency to carry out investigation of FIR No. 192 dated

14.10.2015 (Annexure P-7) and respondent No.3-Kunwar

Vijay Pratap Singh, IGP, who is the de-facto head and

controller of investigation, being carried out in the name

of SIT, be removed forthwith from investigation of FIR

No. 129 dated 7.8.2018 (Annexure P-9) and other

connected FIRs, in view of his partisan and unbecoming

conduct as an investigator;

(iv) To direct respondent No.1 to transfer the investigation of

FIR No. 192 dated 14.10.2015 and FIR No. 129 dated

7.8.2018 (Annexures P-7 and P-9) to the CBI.

(v) And to stay the investigation in FIR No. 129 dated

7.8.2019 (Annexure P-9), being conducted by respondent

No.3, during the pendency of the present writ petition

and subject to the final outcome of the present writ

petition.

The main facts which are common in both these cases, which are

being taken for reference from pleadings in CWP No. 17459 of 2019 are; that an

incident of alleged sacrilege; due to some Saroops (Books) of Guru Granth Sahib

(The holy book of Sikhs) going missing from a Gurudwara in the area of Police

Station Bajakhana in District Faridkot had taken place on 1.6.2015. On account of

that, FIR No. 63 dated 2.6.2015 was registered under Sections 295A and 380 IPC

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 CWP No. 17459 of 2019 (O&M) with
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at Police Station Bajakhana, District Faridkot. An SIT was constituted by the then

government on 10.06.2015 to enquire into the said incident of sacrilege. On

29.9.2015, allegedly, two hand written posters containing some sacrilegious

contents qua Guru Granth Sahib were found pasted near a Gurudwara. For the said

incident, another FIR No. 117 dated 25.9.2015 was registered under Section 295A

IPC at Police Station Bajakhana, District Faridkot. The third incident also took

place on 12.10.2015 when some torn pages of Guru Granth Sahib were found in a

street opposite Gurudwara at Bargari. On account of this alleged sacrilege act,

another FIR No. 128 dated 12.10.2015 was registered under Sections 295 and

120B IPC; again at Police Station Bajakhana, District Faridkot. Since the above

mentioned alleged incidents were protested against by some members of the

society in the area affected and there was apprehension of breach of peace and

threat to law and order, therefore, the District Magistrate, Faridkot, vide order

dated 7.9.2015 imposed Section 144 Cr.P.C. in District Faridkot. Vide this order,

the District Magistrate had prohibited:-

(a) gathering of 5 or more persons at a public place;

(b) raising slogans, holding procession, rallies and such protests at public
places;
(c) holding of meetings at public places.

It was also specified in that order that in the event of exceptional circumstances,

the religious procession can be conducted after getting a written permission from

the concerned Sub-Divisional Magistrate. Still further, the orders said that this

shall not be applicable on police, home guards, military, para-military forces and

the procession regarding marriages etc. performed in peaceful manner. This order

was to remain in force from 8.9.2015 till 5.11.2015. The Senior Superintendent of

Police, Faridkot was directed to take necessary steps to implement this order.

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 CWP No. 17459 of 2019 (O&M) with
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After the above mentioned third alleged incident of sacrilege on

12.10.2015, there were mass protests at Kotkapura and Behbal Kalan between

12.10.2015 and 14.10.2015. These protests were being held despite the above said

order passed by the District Magistrate prohibiting any such protests and

gatherings. The protest at Kotkapura, which is the subject matter of the present

writ petition, was held at a crossing/chowk, which connected the city of Kotkapura

to several other cities. Thus, the public transport was severally affected. In view

of the disturbance of the public transport and the fact that the protests were already

prohibited by the order of the District Magistrate, the police initiated action to get

the place of protests vacated from the protestors. Considering the sensitivity of the

matter, the police and the law enforcement authorities acted with restraint in the

first instance. Efforts were made to negotiate with the protestors and to make them

understand. However, the said approach of the police was, allegedly, taken as a

sign of weakness by the protestors. They refused to vacate the place. Therefore,

on 14.10.2015, the police force from other districts of Bathinda Zone and their

SSPs and other senior officers were deputed at Kotkapura. On 14.10.2015, the

District Magistrate, Faridkot, the SSP, Faridkot, the SDM, Kotkapura along with

their staff and police persons from 13th Battalion from Punjab Armed Police,

Chandigarh were present at Battianwala Chowk, Kotkapura, where the alleged

protest was being held since 12.10.2015. At that time, several Sikh Religious

Organizations and their followers were there. They were, allegedly, armed with

swords, spears and other deadly weapons. To end this protest, the District

Administration held meetings with the leaders of the protestors and made every

effort to peacefully disperse the protestors so as to ensure that the agitators did not

cause inconvenience and disruption to the public and the traffic. However, the

hyper elements amongst the protestors took advantage of the prevalent public

anger and started provoking their followers on the spot by delivering instigating
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 CWP No. 17459 of 2019 (O&M) with
CWP No. 17460 of 2019 (O& M) -7-

hate speeches and by arousing the religious feelings. The said leaders were

instigating the crowd to attack and kill the police personnel and to damage the

police vehicles and public property. The leaders of the protestors had planned

violence and, therefore, they were having a tractor-trolley parked near the site of

protest filled with bricks, brick-bats stones and the sticks. To disperse the

protestors, the police attempted to arrest some of the protestors and their leaders.

For that purpose, the buses of PRTC were requisitioned by the police and District

Administration Authorities. When the police tried to arrest the protestors, they

resisted and started throwing brick-bats and stones upon the police. Hence, the

protest started taking violent turn at about 5:30 a.m. on 14.10.2015.

The petitioner Gurdeep Singh was posted as SHO of Police Station

City, Kotkapura whereas the petitioner H.C. Rashpal Singh (since retired on

31.10.2018) was serving in 13th Battalion, Punjab Armed Police, Chandigarh at

that time. On 13.10.2015, the petitioner and other persons of this battalion were

summoned for duty at Kotkapura in District Faridkot to control the protests, which

were taking place at Kotkapura.

Since the petitioner Gurdeep Singh was posted as SHO of Police

Station City Kotkapura and the incident was taking place in his area, therefore, he

had been on active duty making efforts to control the situation in such a tense

atmosphere. Since, as mentioned above; the protest had turned violent early in the

morning on 14.10.2015, therefore, he had moved an application before the SDM,

Kotkapura, who was present at the spot, for seeking permission to use tear gas and

water cannons to disperse the protestors. The said application was allowed by the

SDM after assessing the situation, which was happening in his presence.

Accordingly, the police used tear gas shells and threw at the protestors water-jets

from the water cannons. On use of this modality, the protestors got infuriated and

started attacking the police itself. Then to control the situation the petitioner
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 CWP No. 17459 of 2019 (O&M) with
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moved another application before the SDM seeking permission to resort to lathi-

charge for dispersing the protestors, who had gathered there in very large numbers.

Keeping in view the large gathering of protestors and the fact that there was

immense apprehension of destruction of public property and of police vehicles by

resorting to violence by the protestors, the said application was also allowed by the

SDM, who was present on the spot. When the police lathi-charged the protestors,

they got furious and started damaging the public property and even burnt some

private vehicles, besides attacking the police force and the police station, which is

situated at about 200 yards from the spot. Even the use of lathi-charge could not

bring the situation under control. Rather, the protestors attacked the police persons

on duty in a very bold and determined manner, which had resulted into injuries to

several police persons. Hence, the petitioner was constrained to move third

application before the Magistrate, who was still present there, seeking permission

to fire gun-shots for self-defense and for dispersal of the protestors. Keeping in

view the gravity of the situation, the SDM granted the permission for firing gun-

shots, as well. However, while granting permission, the SDM had ordered that

gun-shot fire be made in the air. When the police were firing in the air, the

situation went totally out of control and the mob resorted to large scale violence

wherein more than 50 police officials received multiple injuries. The mob of

protestors also snatched official SLR of HC Rashpal Singh, which was also used

by the protesters to fire on police persons on duty. Some of the police persons

suffered grievous injuries and Rashpal Singh was so badly and brutally injured that

he was rendered permanently disabled. The medical examination of the injured

police persons was conducted at Guru Gobind Singh Medical College, Faridkot.

While under treatment at the Medical College, MLR of 15 injured police persons

was prepared whereas statements of the other injured police persons were recorded

by the Emergency Medical Officer at Civil Hospital, Kotkapura. Total 47 police

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 CWP No. 17459 of 2019 (O&M) with
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persons got injured at the hands of protestors. Some of the police persons did not

even have their injuries recorded because these were suffered in large numbers.

On account of this incident, information was sent by the petitioner to

the police Station; in his capacity as SHO; and on that information FIR No. 192

dated 14.10.2015 was registered under Sections 307, 353, 332, 333, 323, 382, 435,

283, 120B, 148 and 149 IPC, as well as, Section 25 of the Arms Act and Sections 3

and 4 of Prevention of Damage to the Public Property Act, 1984, at Police Station

Kotkapura, in which one Panthpreet Singh and 14 others were named as the main

accused; along with various other unknown persons. The FIR was registered for

causing injuries to the police persons on duty and for causing damage to the public

property and police vehicles i.e. Vazra, water cannon vehicle, 3 government PRTC

buses and 2 private vehicles. Under this FIR, 9 persons were arrested on

14.10.2015 itself. However, since the investigation would have taken some time;

and at that time, the petitioner as an investigating officer; could not immediately

collect the evidence against those persons, therefore, they were released on

16.10.2015 on an application moved by the petitioners to the effect that till that

date there was no evidence against them and that they would be investigated later

on, if the need be. Since some persons from the public were also injured in the

incident, therefore, the MLR of some of those, including that one of one Ajit Singh

son of Avtar Singh was also obtained from the hospital for further investigation.

The petitioner conducted the investigation of above said FIR No. 192 dated

14.10.2015 till about first week of December 2015; during which he had recorded

statements under Section 161 Cr.P.C. of more than 60 injured police persons/state

officials. Recoveries were effected during that investigation, including the recovery

of large quantity of kirpans and other weapons from the place of occurrence.

Empties of .12 bore gun and torn pieces of uniforms of the police officials were

also recovered. Various official and private vehicles which were burnt and
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 CWP No. 17459 of 2019 (O&M) with
CWP No. 17460 of 2019 (O& M) -10-

destroyed by the protestors in the occurrence were also taken into police

possession. The SLR, which was snatched by the mob from the police official,

was also recovered from Nagar Council Park in Kotkapura. Thereafter, the

investigation was handed over to ASI Balwant Singh, even though the petitioner

remained posted as SHO, Police Station City Kotkapura till 24.4.2016.

On 14-10-2015 itself but later in time the protestors were holding the

protest at another place also in District Faridkot, namely, at Behbal Kalan under

Police Station Bajakhana. There also, the incident of firing by the police had

happened in view of the protestors having gone violent. In the said firing, two

persons lost their lives. The police registered an FIR No. 129 Dated 14.10.2015

under section 307 IPC and other sections at Police Station Bajakhana. (Note:- This

is a different FIR than the FIR No.129 dated 7.8.2018 registered at Police Station

Kotkapura which is involved in the present petition). The public sentiments got

aroused and the issue was further aggravated by the religious leaders.

Consequently, the SIT which was already constituted to enquire into the incident of

alleged sacrilege recommended registration of FIR for the offence under 302 IPC

qua the incident in which two persons had lost lives - saying that it was the

sentiments of the people to get registered an FIR for the offence of murder.

Accordingly another FIR No. 130 dated 21-10-2015 which relates to the alleged

police firing in Behbal Kalan under Poilce Station Bajakhana was registered at that

Police Station. Also; just after two days of the incident, the then State Government

appointed a Commission of Inquiry on 16-10-2015 by appointing Justice (Retired)

Zora Singh to enquire into the alleged incidents of sacrilege and also into the

police firing on 14.10.2015 at Kotkapura and Behbal Kalan. The said Commission

submitted its report on 29.6.2016. However, whether that report was accepted or

not, is not clearly disclosed by the State Government anywhere.

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 CWP No. 17459 of 2019 (O&M) with
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In the meantime, keeping in view the public outcry for justice and to

ensure a fair investigation, the then State Government had referred the above

mentioned 3 FIRs; i.e.; FIR No. 63 dated 2.6.2015, FIR No. 117 dated 25.9.2015

and FIR No. 128 dated 12.10.2015, all registered at Police Station Bajakhana,

District Faridkot; to CBI vide; notification dated 2.11.2015.

None of the present petitioners is concerned or connected with these

above said FIRs or the incidents involved therein; in any manner.

In March 2017 the Assembly Elections were held in the State of

Punjab and the new government formed by a different political party was sworn in

on 16.3.2017. Asserting that the earlier report of Justice (Retired) Zora Singh

Commission was inconclusive, the incoming State Government set-up another

Commission of Inquiry into the incidents of sacrilege, as well as, into the police

firing at Kotkapura and Behbal Kalan on 14.4.2017, by appointing Justice

(Retired) Ranjit Singh to head the Commission. Although the report of Justice

Ranjit Singh Commission (hereinafter referred to as the Second Inquiry

Commission) does not form part of the record of these writ petitions, however, the

facts as mentioned in the pleadings give an understanding that the second

Commission had recommended registration of criminal cases against the police

persons and some political functionaries. These recommendations were made

because, interalia, one Ajit Singh son of Avtar Singh had filed an affidavit before

the second Commission; stating therein that he had received gun-shot injury in his

thigh in the firing at Kotkapura, which was duly supported with the MLR, and also

in view of the fact that, allegedly, two persons had died in firing at another place;

Bahabal Kalan. The said Second Inquiry Commission submitted its report on

30.6.2018. Thereafter, the DGP, Punjab had written a letter to SSP, Faridkot to get

the statement of the above said Ajit Singh recorded and to register an FIR thereon,

so that the matter can be referred to CBI for investigation, where the earlier 3 FIRs
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 CWP No. 17459 of 2019 (O&M) with
CWP No. 17460 of 2019 (O& M) -12-

relating to alleged sacrilege were already referred. As a result, the SSP, Faridkot

directed the SHO, Police Station City Kotkapura, vide letter dated 7.8.2018, to call

the above said Ajit Singh son of Avtar Singh and to record his statement. This

letter also mentioned that after registration of the case, the file be sent to the SSP

office for onward submission to the office of DGP, Punjab, in order to transfer the

cases to CBI or for further investigation, in compliance of the Government

decision. Accordingly, the FIR No. 129 dated 7.8.2018 was registered under

Sections 307, 323, 341, 148 and 149 IPC and Section 27 of the Arms Act, at Police

Station City Kotkapura. Broadly speaking, this FIR was registered against

unknown persons in the first instance, though later on 7 police persons were added

as accused, including the petitioner on account of above said incident which

happened at Kotkapura on 14.10.2015 in the early morning. In this FIR, the

complainant got recorded qua his injury alleging that on the orders of the “Badal

Government”, the police had surrounded the peaceful protestors and started firing

upon them. In the said firing the complainant was injured. However, he had also

stated that he had never approached the police for lodging his complaint before

joining hearing before the Second Inquiry Commission.

In a related development; qua the firing incidents and death of 2

protestors at Behbal Kalan, another FIR No. 130 dated 21.10.2015 was registered

at Police station Bajakhana at the instance of an SIT appointed by the then state

government to enquire into that incident.

Vide notification dated 24.8.2018, the present Government of Punjab

transferred the investigation of the above said FIR No. 129 dated 7.8.2018, in

which the incident of Police Station City Kotkapura was involved and also the FIR

No. 130 dated 21.10.2015 and FIR 129 dated 14.10.2015 of Police Station

Bajakhana in which the firing and death of two persons at Behbal Kalan was

involved, to the CBI, with which the investigations of 3 other FIRs relating to
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 CWP No. 17459 of 2019 (O&M) with
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sacrilege incident were already pending pursuant to the same having been referred

to CBI by the outgoing State Government. Hence, these 6 FIRs became subject

matter of CBI investigation.

However, since there was a resentment in political circles against

handing over the investigation to the CBI, therefore, the State Government put up

the matter before the State Legislative Assembly and the State Assembly passed a

resolution dated 28.8.2018, i.e., just after 4 days of handing over of the

investigation to the CBI, and the resolution of the State Legislative Assembly

called upon the State Government to take back the investigation of all the FIRs

from the CBI. As a result, vide 2 separate notifications dated 6.9.2018, the State

Government withdrew the investigation of all the FIRs from the CBI for handing

over the same to the Punjab Police.

After withdrawal of the investigation from the CBI, the State

Government constituted a Special Investigation Team (SIT) through the orders of

DGP, Punjab on 10.9.2018. This SIT consisted of 5 officers including Senior IPS

Officers. Sh. Prabodh Kumar, Director, Bureau of Investigation, Punjab, was

designated as head of the SIT. Beside him, it consisted of Sh. Arun Pal Singh, IPS,

IG Crime, Punjab, Kunwar Vijay Pratap Singh, IPS, IG Crime, Punjab, Sh.

Satinder Singh, SSP, Kapurthala and Sh. Bhupinder Singh, Commandant, PRTC,

Jehan Khalan. This SIT was entrusted with investigation of 4 FIRs, including FIR

No. 192 dated 14.10.2015, FIR No. 129 dated 7.8.2018, both registered at Police

Station City Kotkapura and both related to the same incident which had taken place

on 14.10.2015. However, allegedly, Sh. Kunwar Vijay Pratap Singh tried to

exclusively take over the investigation by excluding the other members of the SIT.

Hence, allegedly, they wrote letter to DGP raising their protest in this regard

expressing their dissent qua the investigation being conducted by Sh. Vijay Pratap

Singh. This aspect was widely reported in the press at that time. Since certain
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averments have been made in the writ petition qua these officers and their reported

dissent in investigation with the Kunwar Vijay Pratap Singh, and qua those

assertions these officers were required to answer, therefore, all these officers have

been impleaded in the present petition as respondent No.3 and the respondents No.

7 to 10.

In the meantime, since the police persons were being involved in the

criminal cases on the basis of recommendations made by the second Inquiry

Commission and they did not expect fair investigation by the State police because

of the politics involved in the matter and the issue involved being based on

religious sentiments, therefore, some of the police persons filed CWPs No. 23285,

25837, 25838, 27015 and 28001; all of 2018, in which various petitioners sought

various reliefs. However, read cumulatively, these writ petitions were seeking

quashing of the reports of the Commissions of Inquiry asserting that they have

been named in the report without having been granting any opportunity of hearing

and they were being subjected to criminal proceedings on the basis of those

reports. Further challenge in these writ petitions was to the resolution of Vidhan

Sabha whereby it had directed the state government to withdraw cases from CBI

investigation; on the ground that State Legislative Assembly has no business to

interfere in the investigations and/ or to direct the state executive to withdraw all

the investigations from the CBI. Also; the notifications withdrawing the

investigation from the CBI were under challenge in these writ petitions. Further, a

prayer was made that the investigation be handed over to the CBI so as to ensure a

fair investigation. A Coordinate Bench of this Court dismissed all above said writ

petitions vide a common decision/judgment dated 25.1.2019 passed in CWP No.

23285 of 2018. Hence, the said Coordinate Bench upheld the withdrawal of the

investigation from the CBI, held the recommendations of the Second Commission

to be only recommendatory and further, refused to transfer the investigation of the

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FIRs involved in that bunch of writ petitions to CBI. However, before parting with

the judgment, the said Coordinate Bench had observed that it is expected that the

SIT already constituted by the government would not be influenced by the

recommendations of the Commission of Inquiry in the investigation of the alleged

crime as the same are meant only to instruct and inform the mind of the

government to decide further course of action. The SIT would conduct a fair,

impartial and speedy investigation uninfluenced by the pressure, if any, external or

internal. It was also observed that the investigating agency would insulate itself

from every external pressure and would conduct the investigation professionally so

as to restore faith. It was also observed that the laxity or latitude in such an issue of

public importance would be against the right guaranteed under Article 21 of the

Constitution of India. As has come on record; the LPA preferred against this

judgment was dismissed by the Division Bench of this Court as non-maintainable

since the case had a tinge of criminal case and no LPA was maintainable in

criminal matter under the Letters Patent of the High Court, and further; the SLP

preferred by the CBI was dismissed by the Supreme Court on the ground of delay

while leaving the law point involved in the matter to be open.

Thereafter, as per the petitioners, the SIT started investigation of the

cases including FIR No. 192 dated 14.10.2015 and FIR No. 129 dated 7.8.2018.

The respondent No.3/Kunwar Vijay Pratap Singh tried to bulldoze the SIT and

tried to be de-facto boss of the SIT, despite two IPS officers senior to him being

there in the SIT. This effort of respondent No.3 was resented by the other

members of the SIT. The said dissent of the members of the SIT was reported

widely in the press with assertions that they had written to the authorities regarding

their dissent qua the manner in which the respondent no.3 was conducting the

investigation without their concurrence. Since the respondent No.3/Kunwar Vijay

Pratap Singh was acting as per the preplanned agenda to further the political plans
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of the current political dispensation, therefore; subsequently, he was made de-jure

head of the SIT by the DGP, Punjab. Since the respondent No.3 was already

working as de-facto head of the SIT, therefore, now he was made sole incharge of

the SIT and of the investigation.

Since the respondent No.3 was working in furtherance of a political

agenda, therefore, he did not carry out any investigation qua FIR No.192 dated

14.10.2015 which contained the first version of the incident recorded by the police.

On the contrary; he exclusively conducted the investigation in FIR No. 129 dated

7.8.2018, registered at the instance of above said Ajit Singh against the police

officials. In the said FIR; though not named by the complainant; the respondent

No.3 included the name of the petitioner Gurdeep Singh as an accused on the

allegations of being in conspiracy with higher police officials and the higher

political functionaries; by asserting that the police resorted to unprovoked firing

upon the peaceful protestors. Accordingly, the challan was prepared by the

respondent No.3 against some police official; including the name of the petitioner.

So far as the FIR No. 192 dated 14-10-2015 is concerned, none of the injured

police persons was examined, nor was any heed paid to the investigation already

conducted, statements already recorded and the recoveries already made. Under his

design; the respondent No.3 made petitioner Gurdeep Singh as an accused in FIR

No. 192 dated 14.10.2015 also, although the petitioner Gurdeep Singh was the

complainant in that case. The basic allegation for making the petitioner as an

accused in FIR No. 192 dated 14.10.2015 is that he has shown in record that some

of the police persons fired upon the crowd at the time of police firing on

14.10.2015, whereas the said police persons made statements before the respondent

No.3 that they had not made any firing on the said date. The further allegations

against the petitioner is that he had shown recovery of 10 empties from the spot

and stated to have deposited the same to MHC Malkhana. However, the said MHC
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had made a statement that no such deposit was made by petitioner Gurdeep Singh.

Incidentally, the empties claimed to have been recovered on the spot were stated to

be of the fires made by the same police persons who were now denying of having

fired the shots. It is further the assertion in the petition that since the respondent

No.3 was working with a biased mind and in furtherance of the political agenda of

the current political dispensation, heading the Government in the state, therefore,

he even gave a politically motivated interview to a TV Channel on 18/19 March,

2019 about the ongoing investigation by the SIT and in that interview he made

certain political comments involving the names of the politicians heading the

outgoing Government. This interview was given by the respondent No.3 during a

time when Modal Code of Conduct was in operation on account of Parliamentary

Elections in the State of Punjab. As a result, Sh. Naresh Gujral, MP (Rajya Sabha)

had sent a complaint to the Election Commission of India against respondent No.3-

Kunwar Vijay Pratap Singh. The Election Commission vide its communication

dated 05.04.2019 observed that the said conduct of respondent No.3 was found to

be in clear violation of the Model Code of Conduct and the Election Commission,

accordingly, decided that the respondent No.3 shall be immediately relieved from

this post and that he shall not be given any duty relating to the conduct of elections.

The Election Commission also directed that the action be initiated against

respondent No.3 for above said lapses and violations. Against that order of the

Election Commission, senior Congress leaders, including the State Congress

President and a Cabinet Minister of Punjab made representation before the Election

Commission for not taking any action against respondent No.3. Furthermore,

instead of taking any action against respondent No.3 for removing him from the

job of investigation in these cases, he was given more important posting like IGP

Counter Intelligence and IGP Organized Crime Control Unit. Although the Model

Code of Conduct came to end only on 26.5.2019, however, the respondent No.3
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signed the first report under Section 173 Cr.P.C. on 23.5.2019 during the period

when the Model Code of Conduct was still operating and also when there was an

order of Election Commission removing him from that post. The above said report

under Section 173 Cr.P.C. again named the politicians who headed the outgoing

Government, just to create a political mileage for the political dispensation heading

the State Government at present. The respondent No.3 was so adamant and in a

hurry to involve the petitioner and others in the case and to further the political

agenda that he himself filed the said report under his own signatures; without there

being any concurrence of other members of the SIT. It is further the case of the

petitioners that the respondent No.3 was pressurizing the petitioner Gurdeep Singh

to turn approver and become a witness against the senior police officers and the

politicians heading the outgoing government. When the petitioner refused to buzz

in, then not only the petitioner has been made accused in FIR No. 192 dated

14.10.2015 and FIR No. 129 dated 7.8.2018, rather, he has also been falsely

involved in the other FIR No. 130 dated 21-10-2015 which relates to the alleged

police firing at altogether different place under another police station; with which

the petitioner had no connection at all. The incident involved in the above said

FIR No. 130 dated 21-10-2015 is stated to have happened at a different place and

at a different time, where the petitioner is not even alleged to be present. Again he

has been sought to be involved by alleging to be in conspiracy with higher

officials. Accordingly, alleging that respondent No.3 is going in a biased manner,

in furtherance of political agenda of a particular political party; and further; that he

is not carrying out a fair investigation in the matter at all, the present petitions have

been filed by the petitioners with the above said prayers for either transferring the

investigation of the FIRs to the CBI or to any other independent agency or to issue

a direction to the State to get the FIRs in question investigated by a Special

Investigation Team (SIT) of which respondent No.3 should not be a member.

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Before the start of the arguments on merits, counsel for the petitioners

had submitted that he had no problem with any investigation conducted by any

agency or investigation team, of which respondent No.3 is not a member. He is

ready to face any fair investigation. The said issue was put-up to the counsel for

the State and he had taken time to get the instructions as to whether the State

would be willing to constitute a SIT minus the respondent No.3; to resolve the

grievance of the petitioner qua fairness of investigation. However, the State had

filed written response by submitting that the respondent No.3 is an intelligent

officer of good integrity and he had conducted the investigation in a scientific

manner. It was further asserted that changing the investigating officer would

demoralize the investigating agency. Hence, it was not possible to get the case

investigated by any SIT of which respondent No.3 is not a member. Hence, the

Court proceeded with hearing of the arguments of the parties on merits.

While arguing the case on behalf of the petitioner the learned senior

counsel for the petitioner has submitted that in view of the facts and circumstances

of the case and in view of the documents on record of the case the following

questions arise for consideration of the court:-

(a) Whether FIR No.129 dated 07.08.2018 could have been legally

registered when already FIR No.192 dated 14.10.2015 stood

registered regarding the same incident and the same transaction?

(b) Whether respondent No.3 could be trusted to be impartial in his work

and conduct qua investigation of these cases in view of the documents

placed on record as Annexure P-54 to Annexure P-55 and Annexure

P-21, and his own written statement, which are a candid commentary

upon the work and conduct of respondent No.3?

(c) Whether the SIT was reduced to one man show of respondent No.3,

particularly from 18.04.2020 onward? Further, whether respondent

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No.3 acted with a personal malice against the petitioner to cause

prejudice to him by resorting to unfair and motivated investigation?

(d) Whether the investigation in FIR No.129 dated 07.08.2018 has been

carried out with mala fide intentions to destroy the version of the

police as recorded in FIR No.192 dated 14.10.2015; so as to dump

FIR No.192 without any effective investigation?

Taking the arguments further the learned senior counsel for the

petitioner has submitted that immediately after the incident happened on

14.10.2015 the FIR No.192 was got registered by the petitioner by giving detailed

sequence of the events that happened on that day. The said FIR contained the

description of an incident as it developed in all its stages. Even the issue of firing

by the police forms part of FIR No.192. Since the above said Ajit Singh, on whose

version the second FIR No. 129 dated 07-08-2018 has been registered regarding

the same incident, claims to have got injured in the said firing incident, therefore

the said aspect would have been a matter of investigation during the investigation

of FIR No.192. No separate FIR could have been registered regarding the issues

forming part of the same transaction. Hence, the second FIR No.129 dated

07.08.2018, could not have been legally registered and investigated. The learned

counsel has relied upon the judgment of the Supreme Court rendered in the case of

‘T.T. Anthony Vs. State of Kerela and another, 2001 (6) SCC, 181’ and in the

case of ‘Babu Bhai Vs. State of Gujarat, 2010 (12) SCC 254’, to buttress his

arguments. Clarifying further, the learned counsel for the petitioner has submitted

that it is not the case of the police in FIR No.192 dated 14.10.2015 that no firing

had taken place in the said incident. Therefore, even if the alleged injured Ajit

Singh makes any statement during the investigation, the same has to be taken as a

statement made under Section 161 Cr.P.C. as an injured witness; and the same

could not have been converted into a second and separate FIR. The matter may
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have been different; if the police had denied the incident of firing at all. Still

further, the counsel for the petitioner has referred to the pleadings of the

respondents and the report filed under section 173Cr.P.C. and has submitted that it

is the stand of the respondents only that the FIR No.192 dated 14.10.2015 and FIR

No. 129 dated 07.08.2018 are not mutually exclusive and independent, rather, they

are intricately interconnected. The respondents have also taken a stand that the

version recorded in the subsequent FIR No. 129 dated 07.08.2018 cannot be treated

as a cross-case. In view of this stand of the respondents; the registration of the

second FIR regarding a part of the same transaction is not warranted under the law.

The second FIR has been registered only to destroy and dump the initial version in

the first FIR, without any investigation, by creating a ground for filing separate

report under section 173 Cr.P.C. by representing before the competent court that it

pertains to a separate FIR.

While questioning the impartiality of the respondent No.3 and his

capacity to work as a fair and independent investigator of a crime, the counsel for

the petitioner has submitted that the same cannot be expected from respondent

No.3, in the least. Through his conduct as on record; he has amply exhibited that

he is working on an agenda of the political dispensation of the State heading the

present Government. This is clear from the fact that during the previous Lok Sabha

elections respondent No.3 gave an interview to a news channel regarding the

investigation under progress and made certain comments against the rival political

party and its leaders; asserting them to be the accused in these FIRs. However,

neither it was appropriate on the part of respondent No.3 to indulge in such kind of

interview during the election period nor was he factually correct in that interview

because the political personalities of the rival party, mentioned in the interview,

were not even arrayed as accused by respondent No.3 in anyone of these FIRs.

Thus the entire theatrics of respondent No.3 was only to damage the prospects of
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one political party in the election underway so as to benefit the other political

dispensation heading the present Government. Taking note of this conduct of

respondent No.3 even the Election Commission of India had directed; vide its letter

dated 5.4.2019, to remove respondent No.3 from his present post and not to entrust

him any other duty connected with the election at that time. However, the State

Government did not remove respondent No.3 from the SIT investigating the FIRs

qua which the interview was given by respondent No.3. Instead, he was rewarded

by posting him on some other more important positions as well.

The counsel further argued that although the State Government had

communicated to the Election Commission of India vide its letter dated 8.4.2019

that in compliance of the orders of the Election Commission, respondent No.3 had

been removed from his post, however, subsequently vide letter dated 25.7.2019 the

Election Commission expressed its displeasure on the conduct of the State

Government in making misrepresentation before the Election Commission of India

qua removal of respondent No.3 from the post. It was clarified by Election

Commission of India that its order was to remove respondent No.3 from

membership of the SIT for investigation of FIRs qua which he had given the

interview. However, instead of removing him from the SIT, the State Government

resorted to obfuscation of the issue by misrepresenting to the commission qua

posting of respondent No.3. Hence, there is clear-cut collusion between the

present political dispensation heading the State Government and respondent No.3;

who was working in collusion for a political party by instigating the religious

feelings of the general public. Not only this, earlier also respondent No.3 was

burdened with costs of 5000/- by a Division Bench of this court in CWP No.20199

of 2010 vide order dated 10.10.2013 for having misused his official authority in

registration of a criminal case and then also for making attempt to overawe the

court. In that case also respondent No.3 was alleged to have misused his police
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powers during investigation and had attempted to convert a purely civil dispute

into a criminal aspect and had violated the human rights of the petitioner therein.

The Division Bench had called respondent No.3 for appearance before it.

However, even while appearing before the Division Bench respondent No.3 had

attempted to overawe the Bench and made absurd assertions. The said aspect has

been duly recorded in the Division Bench order. Hence, respondent No.3 is

habitual of misusing the authority and making attempt to overawe the judicial

process. Proceeding further on the same aspect, the counsel for the petitioner has

pointed out that even during the investigation of the present FIRs, the respondent

No.3 had moved an application before the Chief Judicial Magistrate, Faridkot for

obtaining remand of the petitioner for eight days. However, considering the nature

of the case presented by the police before the CJM, that court was satisfied to grant

the police remand for one day only. This was not digestible for respondent No.3.

Hence, to create pressure on the judicial officers in District Faridkot and Kotkapura

the respondent No.3 resorted to extraordinary step of writing a letter to the District

and Sessions Judge on administrative side asking him not to allocate any case

pertaining to the incidents of alleged sacrilege and firing, mentioned above, to the

said CJM by alleging that he was relative of one of a close aide of Sh. Parkash

Singh Badal, the outgoing Chief Minister. This entire exercise was pre-planned by

respondent No.3. The said CJM was on duty only for a few days and the roster for

the same had already been issued about one month back. However, respondent

No.3 chose only that date for seeking remand of the petitioner, when the said

judicial officer was on duty. This entire event was designed, again, to create a

scope for maligning the political image of the rival party. As a result, on the next

day the fact of making the complaint against the above said judicial officer by the

respondent no.3 and withdrawal of those cases from that judicial officer; was

widely reported in the press with the allegations that the said officer was related to
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Sh. Parkash Singh Badal. The political purpose of respondent No.3; of vilification

without taking any action; was again served.

Referring to the written statement filed by respondent No.3 the counsel has

submitted that respondent No.3 is a rustic and arrogant and autocratic person; used

to resort to theatrics even qua judicial proceedings and who considers himself as

‘touch-me-not’ but who does not mind leveling allegation and making comments

against anybody else; whosoever does not fit in his designs or opposes his

autocratic functioning. In written statement he has gone to the extent of leveling

allegations of contemptuous arguments having been made by the counsel for the

petitioner only because he argued the case against respondent No.3. He has made

an absurd claim in written statement that he received appreciation from judges of

High Court on Administrative side! In the end, it is submitted by the counsel for

the petitioner that respondent No.3 himself has admitted in his written statement

that he was acting at the instance and on the directions of the State Government. In

the written statement filed in the present writ petition he has submitted that in the

context of order of the Election Commission he had acted as per the directions of

the Government and in the written statement filed in another writ petition, which is

attached with the written statement filed in the present writ petition as well, he has

specifically pleaded that on the direction of the state authorities he appeared before

the CBI court in the matters of sacrilege cases as the investigating officer; although

he was not even the investigating officer of those cases. Hence, it is more than

clear that he has been working as a roving authority in these cases irrespective of

the fact whether he was the investigating Officer of the case or not. Further, since

he was working under the extraneous directions coming from the politicians,

therefore, he cannot be trusted to be impartial in his functioning qua the instant

investigation.

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The counsel for the petitioner has also submitted that since respondent

No.3 was working in direct coordination with and in furtherance of political

agenda of the present Government, therefore, the authorities ensured that all the

other members of the SIT are rendered redundant and the investigation of the cases

involved in the present petition are brought under the exclusive control of

respondent No.3. As a result, the SIT which was investigating these FIRs in

question was reconstituted and was divided into sub-teams. Although, the other

senior members of the SIT were not removed from the SIT by any order, however,

their role was not specified in the reconstitution order issued by the Director of

Bureau of Investigation vide his letter dated 18.04.2020. The only thing which

was clarified in this letter was that FIR No.192 and FIR No.129 shall be

exclusively investigated by the sub-team headed by respondent No.3 and

consisting of four more members; who were from the same office of which

respondent No.3 was the boss. Accordingly, from 18.04.2020 onward, respondent

No.3 became totally uncontrolled and autocratic in his functioning qua the manner

of investigation of the above said FIRs. From this stage onward he was made de-

facto and de-jure controller and head of the investigation of these two FIRs. This

reconstitution was done by the authorities on their own despite the fact that none of

the other members of the earlier constituted SIT had opted to go out of the SIT.

Despite the other members of the SIT being seniors to respondent No.3; they were

pushed to oblivion qua the investigation of these cases and respondent No.3 was

given the exclusive and over all charge of the investigation. Accordingly,

respondent No.3 started acting with personal malice against the petitioner. He

started threatening the petitioner to withdraw the writ petition filed by him and

further; to become an approver so as to name the higher officers of the police and

the political personalities heading the government at the time of incident as the

accused in the case. However, the petitioner resisted the uncalled-for attempt of
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respondent No.3. As a result, he was called in the office of IG Intelligence by

issuing totally non-specific summon. Essentially, that summon was sent to join the

petitioner as witness in the investigation, however, as it turned out to be; the actual

plan was to harass him and humiliate him. Accordingly, the petitioner was

followed, threatened and thrashed by men of respondent No.3 and he was told to

fall in line, failing which he will be made accused in the cases, which respondent

No.3 was investigating. Raising this issue the petitioner immediately made

representation to the DGP, Punjab vide letter dated 05-06-2020 attached as

Annexure P31/A and requested for protection from respondent No.3. However, no

action was taken by the DGP, Punjab. When the petitioner did not relent, the

petitioner was made an accused in FIR No.129 for being in alleged conspiracy with

higher officials qua causing injuries to protestors. Thereafter, the petitioner was

made accused in FIR No.192 dated 14.10.2015 as well, although he was a

complainant in that case. The petitioner was in jail in these cases and had filed

application for release on bail. Again the petitioner was conveyed the message to

fall in line or he would be involved in another murder case as well. The bail

application of the petitioner was fixed for 15.07.2020. However before that only,

the name of the petitioner was got involved by respondent No.3 in FIR No.130

dated 16.10.2015, although the petitioner had no connection at all with the said

incident. He is not even alleged to be present at the scene of occurrence involved

in that FIR; nor has there been any allegation against him qua the said incident in

the past 5 years despite the repeated inquiries and investigations. However,

respondent No.3 involved the petitioner without there being any basis for the same,

after a period of about five years. Hence, it is clear that the entire exercise of

involvement of the petitioner in the cases being investigated by respondent No.3 is

totally mala fide, intended to break down the petitioner and is not supported by any

evidence connecting the petitioner to any criminal activity, as such. Therefore, the
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investigation stands vitiated on account of mala fides of respondent No.3, as well

as, on account of absurdity of investigation which mentions no evidence against

the petitioner qua the crime alleged against him.

Another limb of the argument of counsel for the petitioner is that since

respondent No.3 was working under a pre-planned design to carry forward a

political agenda, therefore, his entire efforts have been to destroy FIR No.192

dated 14.10.2015 and to create and concoct the allegations in subsequently

registered FIR No.129 dated 07.08.2018. As a result, respondent No.3 has gone to

the extent of manufacturing the false evidence and while filing challan in FIR

No.129 dated 07.08.2018, has declared that the police firing upon the protestors

was unprovoked and was at the time when they were protesting peacefully. While

declaring the alleged protestors to be peaceful and declaring the firing by the police

to unprovoked, respondent No.3 had not recorded statement of even a single

injured police official, whose injuries were duly supported by MLRs. Even the

police and civil administration officials, who have been examined by respondent

No.3 supported the version of the police as given in FIR No.192 dated 14.10.2015.

However, that aspect has been totally suppressed and overlooked by respondent

No.3. Nowhere has respondent No.3 dealt with in the investigation the aspect qua

the civil district administrative authorities being present on the scene and issuing

the necessary orders for the police, for using tear gas and water canon in the first

instance, using lathi-charge in the second instance and then using gun-fire as a last

resort. These official witnesses have owned the orders issued by them, pursuant to

which the police have acted. Even the police officials; who were examined by

respondent No.3 in FIR No. 129 dated 07-08-2018; have duly deposed about the

violence perpetrated by the alleged protestors. Still the respondent No.3 declared

them as peaceful. While investigating FIR No.192 dated 14-10-2015, although

investigating for name only and only to implicate the petitioner and other police
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officials in the same, respondent No.3 has again declared the protestors to be

peaceful and the police firing to be unprovoked. This has been done even without

recording statements of the injured police officials. One of the interesting aspect of

this investigation is that some of the police officials, who are made witnesses and

who have made statements under Section 161 Cr.P.C. in FIR No.129 dated

07.08.2018 have changed their version while making their statements under

Section 161 Cr.P.C. FIR No.192 dated 14.10.2015. In these changed statements

they have omitted that part of the version which would have inculpated the

protesters named in the FIR as accused. This shows that just to destroy the case of

the police and to implicate the police officers in false cases, the respondent No.3

has been recording statements of the witnesses as per his design which suites him

in particular FIR. Otherwise there cannot be any justification for recording of

different versions of the same incident in the statement of same witnesses under

Section 161 Cr.P.C. in two different FIRs; particularly when the investigating

officer in both the cases is the same and when both the FIRs involve the common

facts. The factum of the same witnesses making different statements in FIR No.129

and FIR No.192, shows that respondent No.3 has been pressurizing the witnesses

to make statements which suited the design of respondent No.3 to inculpate the

innocent police officers and exculpate the protestors. Strangely enough; respondent

No.3 has declared Bhai Panth Singh and other persons who are specifically named

as accused FIR No.192 dated 14.10.2015 as the instigators and perpetrator of the

violence involved in FIR No.192 dated 14.10.2015, as innocent, despite the fact

that none of the injured police officials have been examined by respondent No.3

under section 161 Cr.P.C. to give their version qua the role of the abovesaid

persons. Hence, it is submitted by the counsel that, by any means, the investigation

being carried out by respondent No.3 can neither be said to be impartial nor can it

be said the one being in compliance of the provisions of law. The entire exercise
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has been carried out by respondent No.3 for a political agenda of implicating

certain police officials and political entities.

Lastly, the counsel for the petitioner has submitted that the

investigation is totally absurd. The same is nothing but the hypothesis created by

respondent No.3 on the basis of his assumptions by resorting to presumptions of

facts and of law. The job of the investigator is to collect the evidence and not to

assume the things. Instead of doing that job respondent No.3 only groped

randomly to somehow or the other to implicate the police officers and the political

entities. In the process, he introduced Baba Ram Rahim in the investigation

refereeing to an incident as old as of year 2012. He also tried to involve the film

actor Akshay Kumar by invoking the timing of release of his film “Singh is Bling”

and by alleging that Sukhbir Singh Badal met Baba Ram Rahim along with Akshay

Kumar. All these aspects are totally irrelevant and reflect upon absurdity of the

investigation claimed to have been conducted by respondent No.3.

While referring to the judgment dated 25.01.2019 passed by a

Coordinate Bench of this Court (Justice Rajan Gupta) in CWP No.23285 of 2018

the counsel for the petitioner has submitted that the said judgment is not binding

upon the petitioner because he was not a party in that judgment. Neither the said

judgment constitutes a valid precedent on the point, nor is that judgment relevant

for the purpose of the present petition. That judgment related to withdrawal of the

consent granted by the State Government for investigation by the CBI in the cases

which had already been referred to CBI; and qua the prayer of referring some other

cases to the CBI. However, in the present case the prayer of the petitioner emerges

from the fact that the investigation by respondent No.3 is totally vitiated and the

same cannot be expected to be fair because of the external pressure of the political

dispensation, which has already come on record. Therefore, there is nothing to

prevent this court from referring the matter to CBI again, if the petitioner succeeds
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in convincing that the investigation being conducted by the SIT is vindictive and

not impartial. Hence, it is prayed that FIR No.129 dated 07.08.2018, consequent

investigation and other consequential proceedings be quashed and the matter be got

investigated afresh from an independent and impartial agency, preferably the CBI.

Replying to the arguments of the counsel for the petitioner, the learned

senior counsel representing the State and the respondent No.3 has submitted that

neither the petitioner; as an accused; has any right to choose investigation agency

nor the court can interfere with investigation; because the manner of investigation

is the sole prerogative and is within the absolute discretion of the Police. Counsel

carried on contending that, at this stage, when the report under section 173 Cr.P.C.

has already been filed in these cases; and the court has taken cognizance of the

offences; this court is not to interfere in the matter. The petitioner; as an accused,

has alternate remedies to defend him; which he can avail during the trial.

Qua the validity of registration of second FIR qua the same incident the

counsel for the respondents has submitted that there is no illegality in registration

of the second FIR No.129 dated 07.08.2018 despite there being an earlier FIR

No.192 dated 14.10.2015 regarding the same incident. The second FIR has been

registered on recommendation of the second Commission of Inquiry set-up by the

government. The same contains a counter version to the version recorded by the

police in FIR No.192 dated 14.10.2015, where the police themselves are the

complainant. The second FIR has been registered on the statement of the injured

witness Ajit Singh son of Avtar Singh. The counsel has submitted that the

correctness of the judgment in the case of T. T. Anthony (supra) was reconsidered

by the Hon’ble Supreme Court in case of ‘Upkar Singh v. Ved Prakash &

others, (2004) 13 SCC 292’. In the said judgment it was clarified by the Supreme

Court that there is no prohibition of registration of second FIR if the version

contained in the second FIR is counter version. In the present case the second FIR
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did contain a version which is altogether different than the version recorded by the

police in earlier FIR No.192 dated 14.10.2015. The registration of the second FIR

is prohibited only if the same is at the instance of the same person against the same

accused. Otherwise; there is no prohibition of registration of second FIR if a cross

or counter version comes up during the investigation, suggesting any different

offence having been committed by a different accused / set of accused than of the

originally registered FIR. The counsel has also relied upon the judgment of

Supreme Court rendered in ‘P. Sreekumar v. State of Kerala, (2018) 4 SCC

579’, to buttress his argument. Hence, it is submitted by the counsel for the

respondents that the second FIR was rightly registered. To counter the argument

of the counsel for the petitioner on delay in registration of the second FIR, the

counsel for the State has submitted that earlier the matter was being inquired into

by two Commissions of Inquiry. It is only after the matter of injury to the

complainant of the second FIR came on record before the second Commission of

Inquiry that the Registration of second FIR was recommended by the Commission

of Inquiry. It is further submitted that; otherwise also; there is no limitation for

registration of the FIR. The crime never dies and the criminal has to be punished

irrespective of lapse of time. The counsel has relied upon the judgment of Supreme

Court rendered in ‘Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC

394’, and also on the judgment rendered in ‘Sarah Mathew Vs. Institute of

Cardio Vascular Diseases & Ors., 2014(2) SCC 62’.

While refuting the allegations of mala fides, the counsel for the

respondents have submitted that the allegations in this regard are not supported by

any evidence. The allegations are easier to level but difficulty to prove. The

counsel has further submitted that; otherwise also; the court has already taken

cognizance of the offence after the police had filed the report under Section 173

Cr.P.C. Therefore, the mala fide, if any, lose significance altogether. Now it has
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become an issue of assessment of documents on record by the court of law. The

counsel has relied upon the judgment of the Supreme Court rendered in ‘State of

Haryana and other versus Vs. Ch. Bhajan Lal andd Ors, (1992) Supp. (1)

SCC, 335; Mutha Associates Vs. State of Maharashtra, (2013) 14 SCC 304;

Shiva Nath Prasad v. State of W.B, (2006) 2 SCC 757; and in case of ‘State of

Orissa v. Saroj Kumar Sahoo, (2005) 13 SCC 540’.

Still further; the counsel for the State has submitted that even if there

is any irregularity in the investigation that cannot be a ground for quashing of the

same. Section 465 Cr.P.C. provides for condonation of irregularities in the

proceedings. Hence, unless the petitioner shows a prejudice as having been caused

to him, the investigation cannot be quashed only because of some irregularity or

deficiency in conduct of the same. The counsel has relied upon the judgment of

Supreme Court rendered in ‘Rattiram and others v. State of M.P. through

Inspector of Police, (2012) 4 SCC 516’ and ‘Union Of India & Ors vs Ajit

Singh, (2013) 4 SCC 186’. It is also submitted by the counsel that the petitioner

has not been able to show any failure of justice on account of any alleged

deficiency or defect in the investigation carried out in these cases.

On the question of transfer of investigation of the cases to CBI, it is

submitted by the counsel for the State that the issue of transfer of investigation to

CBI has already been adjudicated by a Coordinate Bench of this court (Brother;

Justice Rajan Gupta) vide judgment dated 25.01.2019 passed in CWP No.23285 of

2018, whereby withdrawal of consent by the State Government qua the

investigation of FIRs relating to the incident of sacrilege (FIR No. 63 Dated

2.6.2015, FIR No. 117 Dated 25.9.2015 and FIR No.128 Dated 12.10.2015 - All

of Police Station Bajakhana); and in the FIR No. 129 dated 7.8.2018, Police

Station City Kotkapura and the FIR No. 130 dated 21.10.2015 of Police Station

Bajakhana (in which the incident of firing at Kotkapura and Behbal Kalan
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respectively are involved) from the CBI has been upheld by that Court. The court

has held that there was no infirmity in the decision to withdraw the investigation

from the CBI. Furthermore, the prayer for transfer of investigation to CBI in some

other FIRs was held to be untenable in the light of the judgment of the Supreme

Court in the case of ‘Romila Thapar v. Union of India, 2018 SCC Online SC

1691’. The petitioners in those writ petitions preferred LPA No. 329 of 2019

before the Division Bench of this Court. However, even the said LPA was

dismissed by the Division Bench on 25.02.2020 as not being maintainable.

Thereafter another co-accused filed review application in the above said CWP

No.23285 of 2018. However, even that review application was dismissed by the

said coordinate Bench. The matter even reached to the Supreme Court vides SLP

(C) No.807 of 2020 filed by the CBI. However, even the Supreme Court dismissed

the SLP filed by CBI, on 20.02.2020 on the ground of delay, though leaving the

question of law to be open. Hence, the judgment passed in above said CWP

No.23285 of 2018 has attained finality and the same is binding upon this court

being a Bench of equal strength. The counsel has also submitted that the said

judgment has been followed by another coordinate Bench (Brother Justice Amol

Rattan Singh) as well; while dismissing CRM-M No.19785 of 2020 vide judgment

dated 04.01.2021. Hence, there is no scope left for consideration on the issue of

transferring the investigation of the cases to CBI.

Qua the argument of the counsel for the petitioner regarding making

respondent No.3 as de-jure and de-facto head of the investigation team by

changing the constitution of the SIT, the counsel for the respondents-State has

submitted that it has been done from time to time as per the prevalent

circumstances. The first SIT was created by the earlier government on 10.06.2015

qua the incidents of sacrilege. Thereafter, after the second Commission of Inquiry,

when another FIR No.129 dated 07.08.2018 was registered, then the SIT was
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reconstituted vide order dated 10-09-2018 by including senior IPS officers with the

respondent No.3 as one of the members. However, subsequently one of the

members proceeded on ex-India leave and could not return in time due to COVID-

19 pandemic situation; and the other senior officer was transferred as DGP

(Provision), therefore, after taking opinion from the Advocate General the sub-

investigation team was constituted and was made to work under Director Bureau of

Investigation. However, it is not denied that the sub-team is being headed by

respondent No.3, as also; the other members of the sub-team being the officers

working under his direct control. Accordingly, it is submitted by the counsel for

the State that reconstitution of SIT was part of the normal routine and it was not

done with any specific purpose.

Regarding the assertion of the counsel for the petitioner regarding

illegally carrying on the investigation by respondent No.3 despite the receipt of

communications from the Election Commission, the counsel for the State has

submitted that nothing much can be read from the communications received from

the Election Commission of India. The model code of conduct issued by the

Election Commission of India during the election process is not having any

statutory force. Therefore, the orders issued by the Election Commission of India,

being non-statutory in nature, their violation would not invite any legal

consequences. It is further submitted that the investigation of the FIRs in question

was being conducted by the investigating team in performance of statutory duties.

The same could not have been stopped only because of non-statutory provisions of

model code of conduct and non-statutory directions issued by Election

Commission of India. Doing so might have brought adverse statutory

consequences qua investigation. Citing the example, the counsel has submitted that

in case the report under Section 173 Cr.P.C. is not filed in time, because of any

direction issued by the Election Commission of India regarding change of

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investigating officer, then State would not be in a position to oppose the default

bail which the accused may get even in serious case. Hence, there was nothing

wrong if respondent N.3 had filed the report under Section 173 Cr.P.C. during the

currency of the model code of conduct issued by the Election Commission of

India.

The counsel for the State has also highlighted another aspect by

submitting that although he petitioner is raising the issue of signing of the report

under Section 173 Cr.P.C. by respondent No.3 alone, however, this issue was

raised before the Court of Magistrate and the same was declined by the said

Magistrate. The petitioner along with two other co-accused filed Criminal Revision

No.20 of 2019 before the Court of Sessions Judge. In that revision petition

identical ground was raised as is raised in the instant writ petition. However, later

on the petitioner filed application on 17.09.2019 for deletion of his name from the

array of petitioners in the above said revision petition. The said application was

allowed by the Sessions Court without any liberty to raise the issue again. Hence,

the petitioner abandoned his claim on this aspect. Hence, he cannot raise the same

again in the present writ petition. The counsel has relied upon the judgment of

Supreme Court rendered in Shree Hanuman Cotton Mills v. Tata Air Craft Ltd.,

(1969) 3 SCC 522. It is also submitted that Section 399 (3) Cr.P.C. prohibits any

further proceedings after the revision. Hence, any more challenge on the same

aspects by the petitioner is barred.

By way of brief rebuttal of argument of the counsel for the State, the

learned counsel for the petitioner has submitted that last argument raised by the

State qua abandonment of the claim on account of petitioner having withdrawn the

criminal revision petition, is totally misconceived. The petitioner has not

approached the High Court by the present petition after withdrawing the above said

criminal revision. On the contrary, the writ petition filed by the petitioner was
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already pending when the said criminal revision petition was filed on behalf of and

withdrawn by the petitioner. The limited prayer of the petitioner before the

Magistrate in that application was for calling of the zimini of the investigation. He

had not raised any other issue regarding the report under section 173Cr.P.C. on the

ground of signing of the investigation report by respondent No.3 only or on any

other ground. Other two co-accused, in their separate applications filed before the

magistrate had raised those other issues. However, the Magistrate had disposed of

all the three applications moved by three different persons vide a common order.

As a result, in the first instance, the petitioner was made a party in the revision

petition against the order of the Magistrate. However, since the petitioner had no

further grievance qua his limited prayer regarding calling of the zimini orders of

the investigation, therefore, he had withdrawn from the revision petition, which

was duly permitted by the Sessions Judge. It is further submitted that; otherwise

also; none of the prayers made in the present writ petition could have been granted

by the revisional court in that revision petition. Moreover, the prayer regarding the

FIR No.192 dated 14.10.2015 was not even the concern of the said revision

petition. Furthermore, while moving the said application before the Magistrate in

that case, the petitioner had duly disclosed in the application itself that he had

already moved the present writ petition before the High Court regarding his

remaining grievances. Hence, mere withdrawal of the said criminal revision

petition by the petitioner is of no consequence qua the continuation of the present

writ petition on behalf of the petitioner. Regarding the transfer of the investigation

or to get it conducted by an independency agency, the counsel has submitted that

the accused has right of fair investigation. Even at the stage of charge, the courts;

including the Hon’ble Supreme Court, have been quashing the investigation and

also the charge; on the ground of unfairness of the investigation. The counsel has

relied upon the judgment of the Supreme Court in case ‘Rubabbuddin Sheikh v.
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State of Gujarat & Ors, 2010 (2) SCC 200’. The counsel has further submitted

that the petitioner may not be having any right to ask for a specific investigating

officer, however, there is no clog upon the power of the court to transfer the

investigation if it finds the investigation to be partial and unfair. Moreover, the

petitioner is not praying for any particular investigating officer, rather, he is

praying only for exclusion of one person from the investigation; which may be

conducted by any other person from any agency, including the Punjab Police.

Refuting the arguments of the state counsel qua the judgment dated 25.01.2019

passed by a coordinate Bench of this Court in CWP No.23285 of 2018 the counsel

for the petitioner has reiterated that the said judgment is not binding upon the

petitioner because he was not a party in that judgment. Neither the said judgment

constitutes a valid precedent on the points, nor is that judgment relevant for the

purpose of the present petition. That judgment related to withdrawal of the consent

granted by the State Government for investigation by the CBI in the cases which

had already been referred to CBI; and qua the prayer of referring some other cases

to the CBI. The counsel has further submitted that even in CWP No.23285 of 2018

the coordinate Bench had expressed its expectation that SIT would investigate the

case properly. However, the same is not being done. Hence, the petitioner craves

for indulgence for transfer of investigation to an independent agency. Therefore, in

the present case the prayer of the petitioner emerges from belying of expectation

expressed by the said co-ordinate bench by the respondent No.3 because the

investigation by respondent No.3 is totally vitiated and the same cannot be

expected to be fair because of the external pressure of the political dispensation,

which has already come on record. Therefore, there is nothing to prevent this court

from referring the matter to CBI again, if the petitioner succeeds in substantiating

that the investigation being conducted by the SIT is vindictive and not impartial,

which the petitioner has. Hence, it is prayed that FIR No.129 dated 07.08.2018,
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consequent investigation and other consequential proceedings be quashed and the

matter be got investigated afresh from an independent and impartial agency,

preferably the CBI.

On the issue of the registration of the second FIR the counsel has

pointed out to pleadings of the State to substantiate his argument that the State

itself is saying that the second FIR is not a cross-case. Even in the final report

filed under Section 173 Cr.P.C. the investigating agency has submitted that the

second FIR cannot be treated to be a cross-case. Hence, the registration of the

second FIR itself is bad. Accordingly, the FIR and the investigation pursuant

thereto have to be set aside by the Court.

This Court has heard the counsel for the respective parties and

perused the record. Since this case relates to the alleged violence by the protestors

and alleged injuries caused to the protesters by the police; while making an attempt

to maintain law and order situation, therefore, it would be relevant to recapitulate

the legal prospective in this regard; in brief. 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 by the Constitution itself. Such ‘Expression’ and ‘Assembly’ has to be

within the scope of law. As has been held by the Supreme Court in judgment dated

07.10.2020 passed in Civil Appeal No.3282 of 2020, Amit Sahni v/s

Commissioner of Police and other (Shaheen Bagh Case), in exercise of rights to

protest, the protesters can neither resort to violence nor can they occupy a public

place permanently. Further, it has been held that the law enjoins a duty upon a civil

and police administration to keep the law and order situation under control and

they are required to take action to get vacated a place so occupied by the

protestors; without waiting for any court directions in this regard. For the purpose

of maintenance of law and order certain statutory powers have been conferred
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upon these authorities. Under those statutory powers the authorities can very well

prohibit the assembly at a particular place; or in general for a specified time period;

or assembly without permission of the authorities. If despite prohibition some

persons assemble claiming to protest on a particular aspect and exceed the legal

limits to such an extent where the law and order problem is created, the

administration may take appropriate action to control the situation. For controlling

the problem in such a 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. 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; and further; that the police would never use the force

against them. Similarly, 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. However, in absence of violation of authority and protocols; and in

absence of accompanying mens rea; the injury caused by the police while lawfully

using force to maintain law and order situation; cannot be treated at par with the

similar injury caused by an ordinary criminal who causes such injury in violation

of the law prohibiting causing such an injury, as such.

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The very first argument of the counsel for the State is qua the

maintainability of the present petitions and continuation thereof by raising the plea

that accused has no right to choose the investigation agency. Relying upon the

judgment of a Coordinate Bench of this Court rendered in CWP No. 23285 of 2018

decided on 25.1.2019, the counsel has submitted that this has been so held by the

said Coordinate Bench of this Court in the above said judgment; which relates to

this bunch of FIRs only; and the prayer for transfer of investigation to CBI has

already been declined vides the above said judgment. In view of the arguments of

the Counsel for the petitioner that the said judgment of coordinate bench is not

relevant for the purpose of the present case because the present petitions have

emerged only after the expectation expressed by that bench in that judgment were

belied by the respondent, this court intended not to delve deep into that judgment.

However, the counsel for respondents-state reiterated the said judgment to be

binding upon this court submitting that everything has already been settled by that

judgment. Since after carefully reading the said judgment, this Court had expressed

some reservations qua the value of the said judgment as a valid precedent,

therefore, the counsel for the State was requested to be specific whether he was

relying upon the said judgment as a ‘precedent’ or as a final decision of a lis

between the parties regarding the issues decided in that case. In response, the

counsel for the State has submitted that he was relying upon the said judgment on

both the counts. Counsel for the State has submitted that the said judgment dealt

with FIR No. 129 dated 7.8.2018, registered at Police Station City Kotkapura,

which is also the subject matter of the present petition, and has specifically upheld

the withdrawal of investigation by the state from CBI. After considering the

matter, the said bench has also declined the prayer for reference of the

investigation to the CBI in some other cases relating to the sacrilege and similar

violence. It has been also held in that case that the accused does not have a right of
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choosing an investigation agency or an investigation officer. Moreover, the said

judgment has become final after challenge right upto the Supreme Court. Further

submission of counsel for the State in this regard is that the said judgment has

already been followed by another Coordinate Bench of this Court (Brother Justice

Amol Rattan Singh) while delivering the judgment on 4.1.2021 in CRM-M No.

19785 of 2020. Hence, the judgment is binding upon this Court as a precedent

also. In view of the reiterating arguments of the counsel for the state-respondent;

this court is constrained to consider the issue of the said judgment being a valid

precedent as well. When questioned about reliance in the said judgment upon

resolution of Vidhan Sabha; and consequent notification by state only on the basis

of that resolution without any further application of mind, the counsel for the State

has submitted that the said judgment has rightly relied upon the resolution passed

by the State Legislative Assembly to uphold the withdrawal of the investigation

from the CBI. The matter was put-up before the Vidhan Sabha with the report of

the second Inquiry Commission along with action taken report and therefore, the

Legislature was competent to have discussions on the report of the Commission

and to pass the resolution.

Having heard the counsels and having perused the record, this Court

does not find any substance in the argument of counsel for the State regarding non-

maintainability of petition. The phrase “The accused has no right to choose the

investigating agency” is a very catchy phrase but without any legal consequences

in itself. The said phrase or similar or analogous language has been used in various

judgments only as a part of judgment writing skills to highlight another preposition

of law regarding interference by the courts at the stage of investigation and at the

instance of an accused, and not to laid down this phrase as a preposition of law in

itself. It is simply clear by the very fact that no accused/petitioner comes to the

Court for seeking the transfer of the investigation from one agency to another
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investigating agency or to another investigating officer by claiming the same to be

a matter of right; like he comes in a civil suit. He comes only with a grievance that

his right to life and liberty is being clogged upon by unfair or biased or absurd

investigation or that the investigating officer was working with malice. Therefore,

he craves for indulgence of the Constitutional Court to transfer the investigation;

so as to ensure the fairness in the same. Ultimately, it is for the concerned Court to

assess the grievance of the accused/petitioner in view of the facts and

circumstances of a particular case and to arrive at a conclusion whether it is in the

interest of justice or not; to transfer the investigation to any other investigating

agency or any other investigating officer. This has been so held by the Supreme

Court in numerous judgments, including the latest judgment rendered in the case of

Arnab Goswami v. Union of India and others, (2020) SCC (online) SC 462

(Writ Petition (Crl) No. 130 of 2020 decided on 19.05.2020), wherein the Supreme

Court was considering the petition filed by the accused for transfer of investigation

to CBI, alongwith prayer for quashing of the multiple FIRs for the same incident.

In that case the Supreme Court did not dismiss the same on the ground that accused

does not have a right to choose investigating agency. Though the Supreme Court

declined to transfer the investigation in that case in view of the particular facts of

the case; and by considering the petition on merits; yet the Supreme Court clarified

the proposition of as under:

38. The principle of law that emerges from the precedents of this

Court is that the power to transfer an investigation must be used

“sparingly” and only “in exceptional circumstances”. In assessing the

plea urged by the petitioner that the investigation must be transferred

to the CBI, we are guided by the parameters laid down by this Court

for the exercise of that extraordinary power.

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While holding so, the Supreme Court considered the Judgment in case of ‘Romila

Thaper v. Union of India, (2018) 10 SCC 753’ but reiterated the earlier

judgments of the Constitution Bench of Supreme Court in case of State of West

Bengal v. Committee for Protection of Democratic Rights, West Bengal,

2010(3) SCC 571, which reads as under:-

70…despite wide powers conferred by Articles 32 and 226 of the

Constitution, while passing any order, the Courts must bear in mind
certain self-imposed limitations on the exercise of these constitutional
powers. The very plenitude of the power under the said articles
requires great caution in its exercise. Insofar as the question of issuing
a direction to CBI to conduct investigation in a case is concerned,
although no inflexible guidelines can be laid down to decide whether
or not such power should be exercised but time and again it has been
reiterated that such an order is not to be passed as a matter of routine
or merely because a party has leveled some allegations against the
local police. This extraordinary power must be exercised sparingly,
cautiously and in exceptional situations where it becomes necessary to
provide credibility and instill confidence in investigations or where
the incident may have national and international ramifications or
where such an order may be necessary for doing complete justice and
enforcing the fundamental rights. Otherwise CBI would be flooded
with a large number of cases and with limited resources, may find it
difficult to properly investigate even serious cases and in the process
lose its credibility and purpose with unsatisfactory investigations.”

Another judgment which the Supreme Court reiterated in this judgment is in case

of ‘K.V. Rajendran v. Superintendent of Police, CBCID South Zone, Chennai,

(2013) 12 SCC 480’ which held as under:

“13…This Court has time and again dealt with the issue under what
circumstances the investigation can be transferred from the State
investigating agency to any other independent investigating agency
like CBI. It has been held that the power of transferring such
investigation must be in rare and exceptional cases where the court
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finds it necessary in order to do justice between the parties and to

instill confidence in the public mind, or where investigation by the
State police lacks credibility and it is necessary for having a fair,
honest and complete investigation, and particularly, when it is
imperative to retain public confidence in the impartial working of the
State agencies.
17…the Court could exercise its constitutional powers for transferring
an investigation from the State investigating agency to any other
independent investigating agency like CBI only in rare and
exceptional cases. Such as where high officials of State authorities are
involved or the accusation itself is against the top officials of the
investigating agency; thereby allowing them to influence the
investigation, and further that it is so necessary to do justice and to
instill confidence in the investigation or where the investigation is
prima facie found to be tainted/biased.”

Hence, the prayer for transfer of investigation from one investigating agency to

another is not even an aspect of rights of the accused/petitioner. Rather this aspect

is a subject matter of the discretion of the Court which is considering the issue. The

petition filed by the accused/petitioner cannot be denied on the ground that such a

petition is not maintainable or not tenable. Rather the same is required to be

considered by a court, which may or may not grant such a prayer in its discretion;

considering the facts and circumstances of a particular case. Needless to say, that

such a Court would be required to exercise its discretion as per the judicially

established principles, as delineated above in the judgments of the Supreme Court;

and keeping in view the documents, the facts and the circumstances, as brought on

record by such an accused/petitioner. Accordingly, though the court is not

supposed to exercise the power to transfer the investigation only because it has the

power to do so, and such power is to be exercised only sparingly and with caution,

however, the petition of the accused cannot be thrown without even appreciation of

his grievance qua the procedure being unjust and unreasonable or qua the
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investigation being absurd, based on prima facie manufactured evidence and being

vindictive resulting in grave prejudice to such petitioner /accused. The above said

phrase or any other analogous phrase cannot be taken as a convenient means of

avoiding consideration of or adjudication upon a grievance of the

accused/petitioner. But the same appears to have been the case in the above said

decision of the Coordinate Bench, wherein, the prayer regarding handing over the

investigation to CBI has been dealt with only by the following paragraph :-

“As regards the prayer for handing over the investigation to CBI, the
same is not tenable at the behest of the accused in view of the law laid
down in Romila Thapar case (supra), wherein, it has been held that
this would amount to accused seeking investigation by agency of his
choice, which he does not have. Besides, this Court feels that a
separate investigation by two different investigating agencies would
not be in the public interest, the incident being inextricably linked.”

Hence, it is clear that in view of the law on the point having been expressly

expounded by the Supreme Court; even after taking note of the judgment in case of

Romila Thaper (Supra), the abovesaid judgment of the Coordinate Bench cannot

be taken as a valid and binding precedent on the point. Although counsel for the

State has also put reliance upon the judgment dated 4.1.2021 rendered by another

Coordinate Bench of this Court in CRM-M No. 19785 of 2020; to argue that the

said Coordinate Bench also followed the judgment rendered in CWP No. 23285 of

2018 as a precedent. However, a perusal of the judgment passed in CRM-M No.

19785 of 2020 shows that the said Coordinate Bench had followed the judgment

rendered in CWP No. 23285 of 2018 only as a decision on a lis decided in that writ

petition and not as a precedent. This would be clear by the following paragraph in

the judgment rendered in the abovesaid CRM-M No. 19785 of 2020:-

“Even though Mr. Ghai strenuously argued that the judgment of the
Supreme Court in Gurbir Singh and K. Chander Shekhar’s cases

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petitions; that again would make no difference, in view of the fact that
though no reference to any law laid down may render a particular
judgment to be per incurium as regards the preposition of law itself
that may have arisen in that particular case/set of cases yet, firstly, as
regards the judgment itself qua the particular issue pertaining to a
particular occurrence itself, it would be deemed to be a judgment in
rem and would be stare decisis for the purpose of that particular
occurrence.”

Hence, it is clear that even the subsequent Coordinate Bench; while deciding the

above said CRM-M No. 19785 of 2020; has expressed itself to consider the

judgment by earlier Coordinate Bench in CWP No. 23285 of 2018 to be per

incurium, though followed the same as a decision on a lis involved in that writ

petition.

Regarding reliance by the coordinate bench on resolution of Vidhan

Sabha to uphold the decision to withdraw the investigation from CBI, although

counsel for the State emphasized that the Legislature was considering the report of

the second Inquiry Commission along with action taken report of the Government;

and thus was within its authority to pass a resolution as conclusion of discussion,

however, counsel could not take his argument any further than saying so. He could

not proceed further to say that the Legislature has power to issue direction to the

Executive to take a particular decision in a particular manner in day to day

administration; and particularly regarding the interference in the process or

modality of investigation of a crime. Acceptance of this argument of the state goes

against the very basic Constitutional concept of “Separation of Powers”; which has

been declared a basic feature of the Constitution of India. The counsel for the state

has failed to cite any express provision from the Constitution of India which might

have conferred any such powers on the State Legislative Assembly. Needless to

say, that when the state executive had taken a voluntary decision in this regard in
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the first instance by applying its own mind, it had referred the investigation to the

CBI on 24.08.2018. However, subsequently; only by following the resolution of

Vidhan Sabha dated 28.08.2018 which was passed in quick succession just after 4

days; and specifically citing the said resolution as the reason; the earlier decision

was reversed and the notifications dated 06.09.2018 to withdraw the investigation

from CBI were issued by the state executive. The resolution of Vidhan Sabha

would not attach any extra sanctity or significance to such an executive decision

nor shall any such resolution of Vidhan Sabha take the decision of executive out

from the purview of Judicial Review. Such a decision has to be tested

independently and cannot be upheld merely because it is based upon resolution of

Vidhan Sabha. While testing the validity of the state action independently and vis-

à-vis the statutory provisions, the issue seems to have been dealt with keeping in

view the expediency; by citing delay in completion of investigation by CBI; and

not by analyzing the scope of statutory provisions vis-à-vis the power of the State

Govt. to cancel the consent already granted to the CBI investigation in a particular

case, after the Union Government had already issued the statutory notification

notifying the CBI to be the competent investigating agency. Even the issue of

prospectively seems to have been interpreted inversely. Hence, while having all

reverence qua the majesty of the judgment as a decision on the lis between the

parties and qua the FIRs involved in that writ petition, this court finds itself unable

to follow the same as a ‘precedent’ on any of the law point dealt with in that

judgment.

The value of the above said judgment of the Coordinate Bench, as a

precedent, is also diminished by a fact that although the Supreme Court has

dismissed the SLP filed by the CBI against that judgment on the ground of delay,

however, the law point involved in the matter was still kept open.

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At the cost of repetition it deserves to be pointed out that the FIR No.

192 dated 4.10.2015 was neither the subject matter of the above said writ petition

nor the same was dealt with by the Coordinate Bench in CWP No. 23285 of 2018.

In the present case, the main grievance of the petitioner is that the entire effort of

the respondent No.3 has been to destroy the FIR No. 192 dated 14.10.2015, which

contained the version of the police qua the incident. Therefore, the said judgment

of the Coordinate Bench is not relevant even as a decision on a lis between the

parties qua FIR No. 192 dated 14.10.2015. Otherwise also, the judgment of the

Coordinate Bench in CWP No. 23285 of 2018, although refused to refer

investigation in some other cases to the CBI, however, had expressed its

exceptions that the SIT would conduct the investigation in a fair, impartial and

professional manner so as to instill confidence in public qua the process of

investigation. However, the grievance of the petitioner is qua lack of that

impartiality, fairness and professionalism of the respondent No.3 only; qua the

conduct of the investigation in FIR No. 192 dated 14.10.2015 and FIR No. 129

Dated 7.8.2018. Hence, the present petition is based upon the events which

happened after the judgment of the Coordinate Bench in that case. Therefore, if

the petitioner otherwise makes out a case for transfer of the investigation as per the

criteria laid down by the Supreme Court as mentioned above, then the earlier

decision of the Coordinate Bench would not be an impediment in the way of this

Court in referring the matter to any other investigating agency, including the CBI.

On the point of quashing of the investigation and the charge sheet,

Learned Counsel for the State has submitted that the investigating agency has an

absolute discretion to conduct the investigation deemed fit by it/him and the Court

is not to interfere in the investigation at this stage, when the report under section

173 Cr.P.C. has already been filed. Still further, the counsel has submitted that the

present stage is only the stage of investigation and the petitioners would be having
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liberty to put up their case during the trial and they will be entitled to defend

themselves against the investigation carried out by the respondent No.3. The

petitioners can get acquitted if the investigation conducted by the respondent No. 3

is faulty. However, this Court does not find itself in agreement with the argument

of the counsel for the respondents/State. Learned counsel for the petitioners has

relied upon the judgments of the Supreme Court in case of Committee for

Protection of Democratic Rights, West Bengal (supra) and in case of K.V.

Rajendran (supra) to submit that if the investigation is found to be biased, lacking

integrity, absurd or suffering from mala fides then the Court can quash the

investigation, as well as, the consequent charge-sheet. This Court finds substance

in the arguments of learned counsel for the petitioners. The Hon’ble Supreme

Court has categorically held in case of Rubabbudin Sheikh case (supra) that if the

investigation is found to be not fairly conducted, and also for instilling faith in the

public qua the investigation, the Court can quash the investigation and report under

Section 173 Cr.P.C. and transfer the investigation to other agency. In that case, the

Supreme Court specifically framed a question for consideration as to whether the

investigation can be transferred to another agency after the police have already

filed the report under section 173 Cr.P.C. After considering all the previous

judgments of the Supreme Court it was held in this case as under:

“61. Keeping this discussion in mind, that is to say, in an appropriate

case, the court is empowered to hand over the investigation to an
independent agency like CBI even when the charge-sheet has been
submitted.”

Accordingly the Supreme Court itself had quashed investigation and report under

Section 173 Cr.P.C. and had handed over the investigation to CBI. Not only this,

learned Counsel for the State himself has relied upon the judgment passed by a

Coordinate Bench of this Court in CRM-M-19785 of 2020 in which the

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investigation and the final report filed by the CBI qua the FIRs involved in the

incidents of sacrilege have been quashed and the police has been permitted to carry

out the investigation afresh. Therefore, having itself relied upon a judgment in

which the investigation was quashed, it may not lie in the mouth of the State to

raise this contention that the investigation and the report under Section 173 Cr.P.C.

can be quashed.

So far as the submissions of the Learned Counsel for the State that the

petitioners can avail their remedies during the trial and can cross examine the

witnesses and prove their innocence by leading evidence in defense, is concerned,

that is totally misconceived. It would be a poor consolation to a citizen, even if he

happens to be an accused, to tell him that he should silently suffer undue attack

upon his right to life and liberty for some time and then he can avail his remedies.

There is no gainsaying that Constitution guarantees a right to life and liberty to

every citizen. This right does not get abrogated only because the citizen happens to

be an accused. This right to life and liberty is available to a person all the times and

every moment. This right can be curtailed only through procedure established by

law and such a procedure has to be just and reasonable; as has been held by the

Supreme Court in the case of Menka Gandhi vs. Union of India, AIR 1978 SC

597. The first attack upon right to life and liberty of a citizen comes when the FIR

is registered against him. This is so because mere registration of an FIR visits him

with collateral consequences qua his right to life and liberty, besides subjecting

him to the coercive process qua the matter involved in the FIR. The citizen has

every right to defend against this attack; right from the day one. Therefore, the

Courts have permitted the accused to come for quashing the FIR itself. Besides

this, the procedure prescribed for investigation also contemplates various

safeguards against arbitrariness in the investigation and to ensure that due and

reasonable procedure is adopted by the investigating agency. Whatever lacuna was

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left in this regard, that has been sought to be filled up by the directions issued by

the Supreme Court from time to time against arbitrary and illegal arrest of a person

and qua other procedures to be followed during investigation. Even the right of the

accused to challenge the investigation and the consequent police report has also

been recognized by the highest court of the Country, if the accused satisfies the

Court on certain aspects which has been delineated by the Supreme Court.

Therefore, it is clear that the right of a citizen against being subjected to undue

process remains intact throughout the process of investigation and adjudication. It

is a different matter that to protect that right there are certain statutory provisions

under Cr.P.C. qua some aspects. Where the issue relates to the aspects which are

not covered by the express provisions, the citizen is provided remedy under Article

32 and Article 226 of the Constitution of India and also under Section 482 of

Cr.P.C. This right cannot be put under eclipse on the ground that such a

citizen/accused would be having a right to save himself at the stage of framing of

the charge or, through cross-examination of witnesses of prosecution or at the stage

of leading his defense. Needless to say that scope of the rights available at the

stage of framing of the charge, through cross-examination of witnesses and at the

stage of leading defense evidence for proving one’s innocence; at the fag end of

the trial; are altogether of a different kinds and are circumscribed by various

factors, as prescribed under the statutory law. These rights are not of the same type

or of the same magnitude as a person seeks from a Constitutional Court. Those

statutory remedies are not even of alternate nature. The trial court may not be even

having the authority to grant the relief which the accused seeks from a

Constitutional Court. Quashing of police charge-sheet and transfer of investigation

is an aspect for which there is no alternate remedy before the trial court.

Furthermore, the statutory rights during trial are available to an accused by virtue

of the statutory provisions. The courts do not favour the accused by recognizing
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such rights to him. Hence, it would be only an unsolicited legal advice to an

accused if a court tells him that he has the alternate rights and remedies to defend

himself during the trial. The accused, having a right to remain silent, may not even

choose to invoke those rights or remedies; at that late stage; during the trial, if it

suits him. Therefore mere availability of statutory rights to an accused during the

trial is neither the alternate remedies nor does that stop him from approaching a

Constitutional Court to get the investigation quashed or get the investigation

transferred; if the investigation results in miscarriage of justice qua him, or on any

other criteria recognized by the courts, though it would be within the judicially

exercised discretion of the court to grant or not to grant the relief prayed for by the

accused/petitioner. Therefore, this submission that the petitioners would be having

opportunity to defend themselves at the later stage is totally irrelevant for the

purpose of framing of an opinion by a constitutional court qua sustainability of the

investigation.

Even the argument that the police have absolute power to investigate

the matter in the manner they desire is only a half truth. If the Fundamental Rights

guaranteed to citizen by the Constitution of India are not absolute, then there is no

question of the Police possessing absolute powers on any aspect. Even every

exercise of discretion by the police is liable to judicial review for certain purposes.

The police have to comply with the statutory provisions and ensure the fairness and

impartiality in investigation. In case of violation of either of these; not only the

court has the power to intervene, rather the court would be failing in its duty if it

does not interfere. The police have only a limited liberty to decide the mode of

investigation and the nature of material it wants to collect to bring home the

alleged guilt. They can also decide the question to be asked during investigation.

This is made clear by reading of the judgment of the Supreme Court in the case of

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P. Chidambaram v Directorate of Enforcement, (2019) 9 SCC 24, which has

observations as follows:

“66…there is a well-defined and demarcated function in the field of

investigation and its subsequent adjudication. It is not the function of
the court to monitor the investigation process so long as the
investigation does not violate any provision of law. It must be left to
the discretion of the investigating agency to decide the course of
investigation. If the court is to interfere in each and every stage of the
investigation and the interrogation of the accused, it would affect the
normal course of investigation. It must be left to the investigating
agency to proceed in its own manner in interrogation of the
accused, nature of questions put to him and the manner of
interrogation of the accused.”

On the issue of the validity of second FIR Learned counsel for the

petitioners submitted that the second FIR No.129 dated 7.8.2018 qua the same

occurrence, which is already the subject matter of the FIR No. 192 dated

14.10.2015, is bad in law and therefore, is liable to be quashed along with the

consequent investigation. Learned Counsel for the State has rebutted this argument

by submitting that since the accused in the second FIR is different, complainant is

different, as well as, the allegations are different, therefore, the same would be a

counter case. Hence, the second FIR on the same occurrence would be perfectly

legal.

This Court finds the argument of the learned counsel for the

petitioners having substance. FIR No. 192 dated 14.10.2015 recorded the first

version of the incident which had happened on the same day. This FIR gives a

detailed sequence of events and the offences involved in that incident. The FIR

also contains the fact regarding the police having filed upon protestors. Hence, any

injury consequent upon that police firing would only be a ‘consequence’ of that

firing which is already the subject matter of FIR No. 192 dated 14.10.2015. An
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incident and the consequences thereof have to be investigated together and at the

same time in the first FIR itself. The mere fact that somebody from the other side

was injured would not be a ground sufficient to lodge a separate FIR for the same.

Otherwise also, learned counsel for the petitioners has rightly referred to the

pleadings of the State in the written statement, as well as, in the charge sheet filed

by the respondent No. 3, to contend that the State itself is not considering the

version given in the second FIR as a cross-case. The stand of the State is that the

first FIR No. 192 dated 14.10.2015 and the second FIR No. 129 dated 7.8.2018 are

not mutually exclusive or independent, rather they are intricately intermingled and

therefore these cannot be treated as cross cases. In view of this categorical stand of

the State, no scope was left for registration of a separate FIR qua the consequences

of the factum of firing mentioned in the first FIR. Hence, this Court finds the

substance in a judgment relied upon by the learned counsel for the petitioners

rendered by the Supreme Court in case of T.T. Anthony (Supra) and in case of

Babu Bhai (supra) to be well placed. In the case of Babu Bhai (Supra) held as

under:

21. In such a case the court has to examine the facts and
circumstances giving rise to both the FIRs and the test of sameness is
to be applied to find out whether both the FIRs relate to the same
incident in respect of the same occurrence or are in regard to the
incidents which are two or more parts of the same transaction. If the
answer is in the affirmative, the second FIR is liable to be quashed.
However, in case the contrary is proved, where the version in the
second FIR is different and they are in respect of the two different
incidents/crimes, the second FIR is permissible. In case in respect of
the same incident the accused in the first FIR comes forward with a
different version or counterclaim, investigation on both the FIRs has
to be conducted.

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Although Learned Counsel for the State rebutted the submissions of the Learned

counsel for the petitioners by citing that the Supreme Court reconsidered the law

laid down in T.T. Anthony case (supra) in Upkar Singh Case (supra) and it was

held that there is not absolute bar of registration of a second FIR regarding the

same incident because in case the version of the other side is not taken into account

in the first version, then the second version can go totally unheard. However, The

Supreme Court has again considered the judgments in all the above-mentioned

cases i.e. T.T. Anthony case (supra), Upkar Singh case (Supra), in Arnab

Goswami case (Supra) and while reiterating the judgment in case of Babu Bhai

(Supra) has held as under:-

“This Court held that the relevant enquiry is whether two or more
FIRs relate to the same incident or relate to incidents which form part
of the same transactions. If the Court were to conclude in the
affirmative, the subsequent FIRs are liable to be quashed. However,
where the subsequent FIR relates to different incidents or crimes or is
in the form of a counter-claim, investigation may proceed.”

In view of the above proposition the Supreme Court quashed all

subsequent FIR against the petitioner in that case and permitted investigation in

one FIR only.

Applying the above test to the present case this court is of the view

that although the second FIR on the same incident could not have been legally

registered by the police, however, this aspect has lost significance now in view of

judgment in Babu Bhai Case (Supra), as reiterated in case of Arnab Goswami

(Supra) and also in view of the peculiar facts and circumstances of the present

case. Since the complainant in the second FIR has alleged a different offence,

therefore the investigation has to be continued. Otherwise also, even if the second

FIR was not registered, the version of the complainant in the second FIR was

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first FIR. However, the investigation of both these versions, being inseparably

interconnected, has to be conducted at the same time and not in a segregated

manner. Such an investigation has to be carried out by the same investigating

officer and in the sequences in which the incident is alleged to have happened.

This court does find substance in the argument of the counsel for the

state that the crime never dies and therefore mere delay in registering the FIR is no

ground to quash either the FIR or the investigation. However, the court does not

find the argument of the counsel qua availability of protection of section 465

Cr.P.C. to an investigation even if the same is vitiated being actuated by malice,

found to be absurd or malafide and resulting in miscarriage of justice. The purpose

of section 465 is to protect only the bonafide irregularities, which do not cause any

serious prejudice to the accused. The argument of the counsel in this regard is in

the nature of claiming a right for the investigating officer to commit irregularity in

investigation simply because there is a provision to protect some bonafide

irregularities at a later stage of trial. Hence this argument is liable to be rejected.

Still further, although the counsel for the state has raised the issue of the present

petition being barred because the petitioner had earlier filed Criminal Revision

before the Session Judge and had withdrawn the same without liberty to file fresh

petition, however, this court does not find substance even in this submission of the

counsel for the respondents. The present petition had already been filed and was

pending at the time when the said Crl. Revision was filed and withdrawn by the

petitioner. This fact was even disclosed by the petitioner in that original application

moved by the petitioner from which that revision petition had arisen. Moreover,

the relief claimed in the present petition is of such nature which could not even

have been entertained or granted by the Magistrate or the Sessions court in

revision. Otherwise also, there is no general rule of res-judicata in criminal law.

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To bring his case within the scope of parameters laid down by the

Supreme Court warranting interference by the court at the stage of investigation,

learned counsel for the petitioners has argued that the respondent No.3 could not

be expected to act reasonably and impartially in investigation, respondent No.3 has

actually not acted impartially, he acted with malice and under a predetermined

political agenda to misdirect the investigation so as to dump and spoil the FIR No.

192 dated 14.10.2015 registered at the instance and containing the version of

police, and by his biased, absurd and malicious investigation he actually dumped

the FIR No.192 dated 14.10.2015 without investigation and falsely implicated

petitioner in FIR No.129 dated 7.8.2018 even by going to the extent of

manufacturing and concocting the statements/evidence to suit his design of

implicating some person and to declare some other as innocent. To substantiate all

these aspects the counsel has vehemently argued that the respondent No. 3 could

not be trusted as impartial in investigation in view of the documents placed on

record as Annexures P-54 and P-55, which are orders of Election Commission of

India, as well as, Annexure P-21, which is the order passed by a Division Bench of

this Court and which is commentary upon the credentials of the respondent No. 3.

Although counsel for the respondents/State has submitted that the credentials of an

investigating officer are totally immaterial for the purposes of process of

investigation, however, this Court does not find itself in agreement with this wild

assertion. The allegations against the respondent No. 3 in the present cases are qua

him having acted with mala fides. If an investigating officer is alleged to be acting

with personal malice and with mala fide intention to destroy the investigation or to

conduct the investigation in a non-impartial manner, then the credentials of the

investigating officer can very well be looked into by the Court to ascertain whether

the allegations of personal malice, mala fides and of misuse of power by such an

investigating officer are correct. There is no gainsaying that there cannot be a

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direct evidence of working with mala fide intention. It is to be gathered from

attending circumstances, likelihood of the persons complained against of indulging

in such behavior which lends credence to the allegations of mala fide functioning

in ordinary course, as well as, from the documents placed on record which should

directly reflect upon the malice and malafide functioning of the person complained

against. The documents which have been placed on record by the petitioner; as

mentioned above; amply show that the respondent No. 3 does have a tendency of

misusing his official position and authority in performance of his duties. As per the

documents he has also accepted his conduct to bulldoze and to deviate the process,

as well as, to make an attempt to over awe the judicial process. A perusal of the

judgment Annexure P-21 passed by a Division Bench of this Court in CWP

No.20199 of 2010 shows that in that case although the issue involved was purely

civil in nature, however, by misusing his official authority, the respondent No. 3

converted it into a criminal matter in three matters so as to pressurize the victims.

In the process, he even went to the extent of violation of human rights of the

petitioners in that case. The court had taken a serious note of that. The respondent

No.3 appeared in person and presented his case, though his counsel was also there.

At that time even before the Division Bench, he exhibited a conduct which was

found by the Division Bench to be totally objectionable and aggravating. A perusal

of the order also shows that although on advice from his then counsel he had

tendered an apology to the Bench, however, the conduct of the respondent No. 3 of

such type that the Division Bench of this Court could not accept the said apology

without imposing cost upon the respondent No.3 herein. Hence, the Division

Bench of this Court though accepted the apology of the respondent No.3 herein,

however, he was burdened with Rs.5000/-as costs in that matter. Still further, it

has come on record that during the present investigation, the respondent No. 3 had

moved an application before the Chief Judicial Magistrate on 25.06.2020 seeking

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remand of the petitioners for 8 days. However, considering the facts and

circumstances of the matter and interest of custodial interrogation, the Chief

Judicial Magistrate permitted the police remand of one day only. The respondent

No. 3 felt enraged over the order passed by the Chief Judicial Magistrate in

granting remand for one day only since it was not to his liking. Therefore, the

respondent No. 3, strangely, wrote a letter to the District and Sessions Judge,

Faridkot, on ‘administrative side’ for an order by the Sessions Judge that in future

no case pertaining to the sacrilege and the police firing incidents should be listed

before the then Chief Judicial Magistrate, Faridkot. This was despite the fact that

he was not even the investigating officer in several of those cases. The allegations

leveled in that letter were that the then Chief Judicial Magistrate had a close family

linkage with Prakash Singh Badal, the outgoing Chief Minister of the State of

Punjab, therefore he should not be a judge in his own case! Not even details of any

connection were mentioned in that letter. Although in that letter the respondent

No.3 has written that Prakash Singh badal had been made accused, however the

record shows that even till today no challan has been filed against Prakash Singh

Badal in the present FIRs. Although the respondent No. 3, as an investigating

officer, had every right to move an application in the cases which he was

investigating, on judicial side before any Court, as permitted by the law during

investigation, however, he could not have written any letter on ‘administrative

side’ raising a complaint against the Chief Judicial Magistrate. This mischief was

done by the respondent No. 3 only to pressurize the Courts at Faridkot and to

overawe the judicial process. Otherwise as has come on record, the said Chief

Judicial Magistrate was not regularly having the cases of the said police station

with him. As per the roster published about a month back on 31.05.2020, the Chief

Judicial Magistrate was to hear the cases as a Duty Magistrate only from

23.06.2020 to 26.06.2020. This Court finds substance in the submission of the

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learned counsel for the petitioners that the remand application was deliberately

moved by the respondent No. 3 on the said date before the Chief Judicial

Magistrate so as to concoct a story of Prakash Singh Badal and his family making

attempt to influence the judicial process. The design the respondent No. 3 had the

desired result because on the next day itself, the issue was widely reported in the

press highlighting the names of the politicians mentioned above, their alleged

involvement in the crime mentioned in the FIR, as well as, their possible

interference in the judicial process. The other desired result; which the respondent

No. 3 intended and he got after this letter; was that thereafter none of the judicial

officers rejected application for remand moved by the respondent No. 3. Rather

the judicial officers granted remand in the applications moved by the respondent

No. 3 either on the same grounds on which earlier remand was obtained or even on

the grounds; as written in the applications moved by the respondent No. 3; but

which did not make any sense even linguistically. It is a different matter that even

the other Magistrates hearing the remand applications moved by the respondent

No. 3 did not grant the police remand for more than two days, whereas, the Chief

Judicial Magistrate had granted the remand for one day and had not dismissed the

application moved by the respondent No. 3. The then District and Sessions Judge

also owe an explanation as to how he entertained a letter written on administrative

side on this aspect. Still further, the documents Annexure P-54 and P-55, placed

on record by the petitioners shows that the respondent No. 3 does not hesitate in

using his position and capacity even for the purposes motivated politically. The

respondent No. 3 was working as an investigating officer in April 2019 when the

Parliamentary Elections were taking place. The respondent No. 3 gave interview

to a TV Channel, in his capacity as an investigating officer, and named certain

political leaders of the party rival to the political dispensation heading the current

government. Allegations qua their role in the incident of sacrilege and police
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firing were highlighted by the respondent No. 3 knowing fully well that such an

interview at such a juncture would enhance the political prospects for one political

party and would damage the political prospects of another political party.

Accordingly, the Election Commission of India also took note of this objectionable

conduct of the respondent No. 3 on a complaint made by Sh. Naresh Gujral, MP

(Rajya Sabha) from Punjab. After assessing the conduct of the respondent No.3 in

that regard, the Election Commission passed the order for removal of the

respondent No. 3 from the present post and to debar him from being posted on any

post in relation to election duty during that election. The respondent No. 3 did not

stop here. As has come on record, the respondent No. 3 prepared the challan under

his signatures on 23.5.2019, when the model code of conduct was still in operation.

This was done by the respondent No. 3 despite the fact that there was an order

from the Election Commission to remove him from SIT, as has been clarified by

the Election Commission of India. This Court also finds substance in the argument

of the learned counsel for the petitioners that this was being done by the

respondent No. 3 under political patronage and / or for a political purpose because

it has also come on record that the State Government did not remove the

respondent No. 3 from the investigation in question despite the orders of the

Election Commission. However, this aspect would be dealt separately in the

coming paragraphs of the judgment. The respondent No.3 has also made a totally

unsubstantiated and awkward claim in his written statement that his functioning

has been appreciated by two judges of this court on Administrative Side. There is

nothing on record as to who were the judges who appreciated the functioning of

the respondent No.3 and what was the administrative purpose for which the said

judges contacted him on administrative side. Another scandalous statement made

in his written statement is that he was not bringing something on the record of the

case because two of the counsels who dealt with the sacrilege case have been
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elevated as Judges of this Court. This court does not see any relevance of this

statement except its inherent absurdity and the theatrics underlying it. Not only

this, to browbeat the counsel for the petitioners; the respondent No.3; in his written

statement; has also made absurd comments against the senior counsel for the

petitioners only for performance of his duty of arguing the case of the petitioners.

Hence, this Court finds that the respondent No.3 is a person who indulges in

misuse of his official position to further his designs; makes attempt to over-awe the

processes and the authority and who indulges in theatrics and political

maneuvering to draw mileage out of it. The apprehension of the petitioner(s) that

the respondent No.3 cannot be expected to act fairly and impartially in the conduct

of investigation; is found to be reasonable one even as per the standards of an

ordinary person of ordinary prudence. Hence, the petitioners are right in arguing

that the respondent No. 3 cannot be trusted to be impartial and unbiased in

performance of his duties as an investigating officer.

Another limb of the argument of learned counsel for the petitioners is

that in furtherance of a political design to falsely rope in some persons in the cases

through the misadventures of respondent No.3, the SIT already constituted was

reduced to one man show from 18.4.2020 onwards, although the respondent No. 3

was a de-facto sole controller of the investigation even earlier. It is the further

submissions of Learned counsel for the petitioners that the respondent No.3 acted

with personal malice against the petitioners so as to pressurize the petitioners to

withdraw the present writ petitions which they had already filed before the High

Court and also to coerce the petitioners to become approver and a witnesses against

other senior police officers and against some of the political functionaries of the

State. All this was being done at the instance and in collusion with the political

dispensation having the present government in the State. The counsel has again

referred to the complaints made to the Election Commission and the orders passed
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by the Election Commission thereon, as well as, certain parts of the process of

investigation to highlight the political agenda being pursued in the investigation.

Counsel also referred certain orders passed by the authorities to change the SIT and

certain incidents which had happened to him after the change of the SIT. Qua the

allegations of the political agenda being pushed through the investigation and qua

the orders of the Election Commission, Learned Counsel for the State has

submitted that there was no political interference in the entire investigation.

Moreover, model code of conduct is not a statutory provision, therefore, neither the

same was binding upon the State authorities nor that can be interpreted to mean

that the statutory functions like investigations and the trial by the prosecution has

to be brought to a halt. However, this Court does not find any substance in the

argument of counsel for the respondents/State. Of course, the model code of

conduct is not a statutory provision, but this submission is totally irrelevant. The

petitioners are not claiming anything by submitting that the model code of conduct

is statutory in nature. Rather, they are only highlighting the aspect where a State

Government had gone to the extent of not complying with the orders of the

Election Commission of India also; just to continue the respondent No.3 as main

investigator of the cases. This approach had been adopted by the State Government

despite the fact that the respondent No.3 had given such an interview to a TV

Channel which had political connotations and which was not the part of the job of

an investigating officer, by any means. Seeing this conduct of the respondent No.3

one may harbor an idea that the respondent No.3 may be indulging in these

political theatrics to fulfill his own political purpose of creating post-retirement

greener political pastures for himself so as to enter the political field; as several

retired officers have done, after demitting office. However, the political backing of

the respondent No.3 becomes clear from the fact that not only the State

Government did not remove the respondent No. 3 from the job of investigation of
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the FIR in questions, qua which the Election Commission had found the conduct of

the respondent No. 3 to be objectionable, but also the top functionaries of the

political party heading the present government, as well as, its Cabinet Ministers

wrote letters to the Election Commission of India for revoking the order passed

against the respondent No.3. This shows the close nexus between the politics, the

respondent No.3 and the investigation being carried out by him. In his written

statement, the respondent No.3 has specifically written that the order of the

Election Commission of India was ultra vires the constitution of India and that in

context of the orders of the Election Commission, he was working only as per the

directions of the Government. Therefore, he has himself stated the Government to

be participant in what happened during that period. Not only this, the Election

Commission has referred to a D.O. Letter written by the Chief Minister of the State

requesting the Election Commission to recall its orders passed against the

respondent No.3 by asserting that the respondent No. 3 was a competent officer. In

view of this letter, the nexus between the respondent No.3, the politics and the

investigation in the cases in question; is anybody’s guess.

Although Learned Counsel for the State had submitted that since

model code of conduct is not statutory in nature, therefore, it could not have

prevented the other statutory proceedings like filing of the challan or grant of

default bail by the Courts in case of non-filing of the challan due to model code of

conduct. However, this argument is totally hypothetical. In the present case,

neither there was any specific urgency for filing of the challan nor was there any

issue of grant of default bail to anybody. Therefore, the respondent No.3 could

have very well avoided giving interview or preparing challan till the elections were

over. The challan was, otherwise also, filed on 25.07.2019 after the election was

over. This argument of Learned Counsel for the State is shown to be totally hollow

otherwise also. If the filing of the report under Section 173 Cr.P.C. was mandatory
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before the expiry of the model code of conduct, the same could have been done by

the another investigating officer as well; and in case any question of grant of

default bail on account of non-filing of challan was there, the investigating officer

could have moved the application before the concerned Court for extension of time

for completion of investigation. However, instead of following these legal

procedures, the respondent No.3 hurriedly prepared the report under Section 173

Cr.P.C. during the process of elections to highlight the names of certain politicians

rival to the political party heading the present government, although no challan was

being filed against them. In any case, no law required the respondent No. 3 to go

to media and to give such interview which had political overtones; qua the

investigation and during the election time.

This Court also finds substance in the submission made by Learned

counsel for the petitioners that to make the respondent No.3 as sole incharge of the

investigation; so that he could bulldoze the entire process of the investigation; the

composition of the SIT was changed by making the respondent No.3 as head of a

sub-team investigating these FIRs; with the other team members being the

immediate subordinates of the respondent No.3. Although learned Counsel for the

State has tried to justify the change of the composition of the SIT by submitting

that one of the earlier members of the SIT had gone on ex-India leave and was not

likely to return in near future on account of COVID-19 pandemic situation and the

other senior members of the team was transferred from his present place of

posting, however, this explanation is not justified by the facts on record. The

earlier SIT was constituted under the Chairmanship of a senior IPS Officer

Prabodh Kumar, who was much senior to the respondent No.3. There was other

senior IPS officer as well, in that SIT. There is nothing on record to show that Sh.

Prabodh Kumar ever refused to continue to head the SIT or that the other senior

IPS Officer made any request to recues himself from the SIT. The transfer of
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Prabodh Kumar cannot be justifiably cited by the State as a reason for change of

the composition of the SIT because the members of the SIT were earlier nominated

by name and not by their official designations. Moreover, the petitioners have

asserted in the writ petitions that those senior members of the SIT had clearly

expressed their resentment against the autocratic and arbitrary functioning of the

respondent No. 3 by writing to the State Government and authorities to this effect

and the said matter was widely reported in the press. The said senior members of

the SIT have been made party to the present petitions. However, they have chosen

not to rebut the assertions made in the writ petitions by filing any written

statement. Therefore, an adverse inference has to be drawn on the issue and it has

to be taken as correct that the said members of the SIT were not agreeing with the

functioning of the respondent No. 3 because of his autocratic style and bulldozing

manner in functioning. This fact is further substantiated by the fact that even the

challan filed in the present FIRs, so far, has been signed only by the respondent

No. 3 and not by any other member of the SIT. This is despite the fact that Prabodh

Kumar or Arun Kumar has not been removed from the SIT by any specific order.

There is nothing in challan or otherwise on record to show that the other members

of SIT had ever approved the said challan before being filed or they had ever

authorized the respondent No.3 to file the same on behalf of the SIT. The record

also does not show that even before the change of the composition of the SIT, the

other members had ever concurred to the investigation carried out by the

respondent No.3. This is clear from two facts, Firstly, the respondent No.3 has

filed his written statement in these petitions and although in the said written

statement he has asserted that investigation was being carried out by him in

cooperation and consultation with the other members of the SIT, however, he has

stopped short-of asserting that investigation was being carried out by him with

‘concurrence’ of the other members of the SIT or that they ever agreed to the
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investigation being carried out by the respondent No. 3. Secondly, the State has

failed to suitably rebut the assertions of the petitioners that the other members of

the SIT never signed even the zimnies during the investigation; as a mark of

agreeing with the investigation being carried out by the respondent No. 3. The

State has not placed on record anything to show that all the other members were

also the signatories to the proceedings of the investigation carried out by the

respondent No.3. Although during the arguments, Learned Counsel for the State

has submitted that there were some entries which were signed by the other

members of the SIT as well, along with the respondent No.3, however, he could

refer to only some of the zimnies and even those were signed, statedly, only by two

members. It is also not clear from anywhere whether other member who signed the

zimnies alongwith the respondent No.3 were not the police officials working under

direct control of and as subordinate to the respondent No.3 in his office. Therefore,

this has to be taken by this Court to have been established by the petitioners that

the respondent No.3 was made the de jure head of the SIT by the State authorities

to avoid the participation of the other senior members of the SIT into investigation

and to make the respondent No. 3 as sole and exclusive incharge of the

investigation of the FIR in question; so as to enable him to carry out his design

through autocratic functioning and bulldozing style.

The assertion of the petitioners that the respondent No. 3 worked with

personal malice against the petitioners is also amply clarified by the fact that after

having been made the sole incharge of the investigation, the respondent No. 3

swiftly involved the petitioner Gurdeep Singh in one case after the other, including

in one case which is of another police station. Although Learned Counsel for the

State has submitted that the petitioner has been involved in all the cases only after

finding evidence against him and nothing much can be read in implication of the

petitioner in three cases in a short duration, however, the manner in which the
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petitioner is stated to have been involved in these cases; and the proceedings

thereof; leave much to be desired. The respondents have not denied the assertions

of the petitioners that he was called by the respondent No.3 to an office where

neither the investigation was being carried out nor was the petitioner posted. The

summons was also vague, not specifying any offence or case. Ostensibly; the

summons were sent to join investigation as witnesses. However, on reaching at

that place, the petitioners claims to have been harassed and humiliated by the

persons; who were subordinates to the respondent No.3. The petitioners had made

a representation to the Director General of Police, Punjab, immediately; however,

no appropriate response was reflected by the DGP. The respondent No.3 obtained

repeated remand of the petitioner, even by citing grounds which were vague and

which linguistically also did not make any sense. The respondent No.3 is shown to

have involved the petitioner in FIR No. 192 dated 14.10.2015 as accused by

making a telephonic call to the concerned police station; even without telling that

police station as to what was the role attributed to or the allegations against the

petitioner. Moreover, when the bail application of the petitioners in FIR No. 192

dated 14.10.2015 was pending before the Court, the respondent No.3 is stated to

have made another telephonic call to another police station, and this is also so

recorded in the zimni/daily diary of that police station, to inform that police station

that the petitioner was to be arrayed as accused in a pending murder case of that

police station also. This appears to have been done to ensure that the petitioner

does not come out of custody and he remains in continuous custody being arrayed

as an accused in a serious case. All these incidents lend credence to the

submission of the petitioner that the respondent No.3 was pressurizing him to

withdraw the writ petition and to become a witness to implicate the other senior

officers of the Police Department and some top political functionaries of the rival

political party. Therefore, the petitioners have amply substantiated that the
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respondent No.3 was acting with personal malice and mala fide intention, in

furtherance of an extraneous agenda. Although Learned Counsel for the State has

submitted that the allegations of mala fide are irrelevant in case of investigation

particularly when the report under Section 173 Cr.P.C. has been filed before the

Court and the Court has taken cognizance of the same; and has relied upon the

judgment in case Bhajan Lal (Supra), in case of Mutha Associates (Supra), in

case of Shiv Nath Prasad (Supra) and in case of Saroj Kumar Sahoo (Supra), to

buttress the argument, however, this Court finds that in the judgment rendered in

case of Bhajan Lal (Supra) the Supreme Court itself has laid down that the FIR

and the proceedings being vitiated by ‘mala fides’ shall be one of the grounds to

quash the proceedings against the accused. Though there can be no dispute qua the

proposition expounded by the court in other judgments relied upon by the counsel,

however those judgments are totally distinguishable on the particular facts of those

cases vis-à-vis the facts involved in the present cases. This court finds the case of

the petitioners to be covered by the judgment of the Supreme Court in case of

Rubabbuddin Sheikh v. State of Gujrat and others, (2010) 2 SCC 200. Even in

case of Babu Bhaib (Supra) the proposition on this aspect has been amply clarified

by the Supreme Court wherein it has been laid down that if there is a miscarriage

of justice on account of personal malice or mala fide functioning of the

investigating officer, then investigation can be quashed by the court. Hence it is

clear that it is the ‘effect’ of the malice and mala fide functioning of the

investigating officer which is the clinching factor and not the fact that challan has

already been filed by such investigating officer. Therefore, the allegations of mala-

fide do not lose their sting simply because the investigating officer has filed the

challan, may be even with concocted and manufactured alleged material. The

accused can very well show the miscarriage of justice caused qua him on account

of mala fide investigation of the case. In the present cases, the entire submission of
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the petitioners is that the mala fide intention of the respondent No. 3 was directed

to seriously prejudice the petitioners by falsely involving them in criminal cases

even by going to the extent of manipulating and recording the false statements of

the alleged witnesses. Therefore, the argument of Learned Counsel for the State is

liable to be noted only to be rejected.

Next comes the assertion of the petitioners that the respondent No.3

was carrying out the investigation in furtherance of a pre-planned design and in

furtherance of political agenda to destroy the FIR No.192 dated 14.10.2015, which

contained the police version of the incident, even without investigation of the

same; and also by attaching the political connotation to the investigation through

highlighting the alleged role of higher police officers and of the senior political

functionaries of the outgoing political party. To buttress his argument in this

regard, learned counsel for the petitioners has referred to some part of the alleged

material collected during the investigation by the respondent No. 3, as well as, to

the manner in which the investigation has been conducted by him. Although; in the

opinion of this Court; it would not be appropriate for this Court to express its

detailed opinion on merits or on the quality of the alleged evidence; stated to have

been collected by the respondent No.3 to file charge-sheet against the petitioners;

or qua the alleged involvement of other persons in the crime, however, since the

impartiality, integrity and incomprehensibility of the investigation and the report

under Section 173 Cr.P.C. has been questioned by the petitioners and they have

referred to certain aspects of the report under Section 173 Cr.P.C. filed against the

petitioners, therefore, some reference to some parts of the report under Section 173

Cr.P.C. filed by the respondent No.3, as well as, to the alleged material collected

by him; has become imperative to test the version of the petitioners. This Court

would restrict itself only to that extent in considering the report and the alleged

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material claimed by the respondent No.3, lest any prejudice should be caused

either to the case of the prosecution or to the case of the petitioners.

Having considered the material on record of these petitions and

arguments of the counsels, this Court finds that the respondent No.3 has conducted

the investigation in a perfunctory manner. The report under Section 173 Cr.P.C.

filed by him is more in the nature of a hypothesis proposed by the respondent No.3

based on his assumptions and fantasies than being based on material or evidence.

The respondent No.3 conducted the investigation by starting the same in FIR No.

129 dated 7.8.2018, which was subsequent in time and which was relating only to

the consequences of the incident mentioned in the first FIR, i.e. FIR No. 192 dated

14.10.2015. In this investigation, the respondent No.3 has not examined any one of

the injured police persons so as to assess the respective assertions of the parties in

the FIRs. He has examined the alleged injured persons from amongst the alleged

protestors and filed a report under Section 173 Cr.P.C. in FIR No. 129 dated

7.8.2018; starting with a conclusion that the police resorted to unprovoked firing

upon the peaceful protestors. The relevant para of the report Section 173 Cr.P.C. in

FIR No. 129 dated 7.8.2018 in this regard reads as under:

“Case Summary This case is related with unprovoked and

unwarranted police firing on the people sitting on dharna in the early
morning of 14.10.2015 at Kotkapura chowk where people gathered in
protest of a series of incidents of sacrilege of Sri Guru Granth Sahib Ji
which occurred at village Bargari and Burj Jawahar Singhwala. In this
firing many persons received serious injuries while they were sitting
on dharna peacefully and observing holy prayers (nitnem-path).
At that time, the police of City Kotkapura did not take any
action on this incident knowingly, intentionally and in deep
conspiracy under influence of and in connivance of higher rank police
officers and political bosses at that time. This FIR could only got
registered on the recommendations of a Judicial Commission of

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Inquiry; commonly known as “Justice Ranjit Singh Commission of

Inquiry” (herein after referred as “Inquiry Commisson”).
The investigation of this case (FIR No.129 dated 07.08.2018)
was entrusted to a Special Investigation Team (SIT) to investigate
four cases related with police firing vide order No.5501-08/CR-IN-II
dated 10.09.2018 (Copy enclosed).
During the investigation by the SIT, it has been established that
several persons were injured during this police action but they were
not shown injured in the police record and no action was taken by the
local police and material evidence has been intentionally disappeared
under the influence of senior officers and higher authorities.”

This approach is totally uncalled for and unsustainable. Even before

starting the investigation in the FIR No.192 dated 14.10.2015; which contained the

police version and wherein they had asserted violence on the part of the protestors

and the police firing being only consequential, the respondent No.3 had declared

the firing by the police to be totally ‘unprovoked’ and the protestors to be totally

‘peaceful’. Furthermore, although the respondent No. 3 examined some of the

police persons who were present on the scene of occurrence on that day and

recorded their statements, however, those statements of these witnesses were in

direct contravention of their earlier affidavits sworn and filed by them voluntarily

before the Inquiry Commissions. Needless to say, that the second Inquiry

Commission was constituted only by the present political dispensation and

therefore, the said police officials could not assert that they were under pressure to

file affidavits which they had filed before, at least, the second Inquiry Commission.

Moreover, they never raised any complaint regarding being pressurized to swear

and submit false affidavits before the Inquiry Commissions. However, this aspect

has totally been obliterated in the investigation carried out by the respondent No.3.

Although the respondent No.3 may contend that the affidavits submitted by those

police officers before Inquiry Commissions may not be relevant for the purpose of
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judicial proceeding because the prosecution is to proceed only on the basis of

material collected during the investigation, however, the respondent No.3 himself

has heavily relied upon the parts of the report of the Inquiry Commission to assert

the commission of crime by police officers and the political functionaries.

Moreover, even the FIR No. 129 dated 7.8.2018 is, admittedly, recorded on the

basis of affidavits submitted by the witnesses before the Second Inquiry

Commission.

Another aspect to highlight a hypothetical approach of the respondent

No.3 during the investigation and to further the political agenda is clarified by the

fact that he has claimed conspiracy between the then Chief Minister, the then

Deputy Chief Minister, the then senior police officers and the petitioners 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. In the

same manner, he relies upon the call details which show the then DGP, Punjab

talking to the District Administration or to the MLA who was the political

representative of the area around the time of incident. However, in the considered

opinion of this Court 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 and then directly linking the Chief Minister to

such 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. The fact that

the then Chief Minister was in contact with the district officials, rather, shows that
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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. However, there is not any material collected by the respondent No.3 to

even remotely suggest direct linkage of the Chief Minister to any conspiracy

except the call records. The respondent No. 3 claimed that the then Chief Minister

talked through the phones of his Principal Secretary and his OSD. However,

version of none of them has been taken on record by the respondent No. 3 to

substantiate the nature of conversation. None of the other witnesses is stated to

have even remotely suggested that the then Chief Minister conspired to kill the

protestors by police firing. The other hypothetical preposition proposed in the

report prepared by the respondent No. 3 is that since the police officials, who were

not regularly posted in District Faridkot, were deputed to control the protestors;

therefore, it would show the criminal conspiracy. However, it has come on record

that these officers were deputed because of the fact that they had remained posted

in Faridkot District immediately before the incident; and the post of IG Bathinda

Zone had not been occupied by any person at that time. Moreover, the said officers

were not the only police officers who were deputed there at that time. Even the

Punjab Armed Police was requisitioned and the personnel from 13th Battalion of

the same were also present there. In fact, the petitioner-HC Rashpal Singh, who

claims to have been seriously injured in violence by the protestors was posted there

only as member of this 13th Battalion. Mustering of police force from various

sources of state to control the law and order situation is nothing uncommon. On the

contrary the authorities are supposed to employ all possible and appropriate

resources to maintain law and order in the state. Although the respondent No.3

would have been free to collect the material and evidence to substantiate the
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conspiracy claimed by him, instead, he has chosen to rely upon the subsequent

conduct of the police officers and then to draw the presumption qua conspiracy by

invoking the admissibility of subsequent conduct in evidence. Even if the alleged

subsequent conduct of the said police officers is to be taken as it is, that hardly

would be any evidence to prove the factum of conspiracy which involves prior

meeting of minds. However, collecting material qua prior meeting of mind would

be a subject matter of free and fair investigation, if the investigating officer can

find one.

As per the report under Section 173 Cr.P.C., filed by the respondent

No. 3 in FIR No.129 dated 07.08.2018, and which is placed on record of this case,

the respondent No.3 has gone to the height of his fantasy when he has brought in

film actor Akshay Kumar into the picture to claim as part of a conspiracy because

he produced a film called “Singh is Bling” and tried to exhibit the same in the State

of Punjab. Even an old incident of the year 2012, qua which the FIR also stood

cancelled several years back; has been sought to be invoked by the respondent

No.3 to allege conspiracy by the political functionary of the opposite party namely;

Sukhbir Singh Badal. However, the respondent No. 3 failed to collect any material

to reasonably connect that incident in any manner to the allegations of conspiracy

proposed in this case. Even a religious act of alleged pardon of Dera Sacha Sauda,

Sirsa has been brought into picture by the respondent No.3 only to strengthen his

hypotheses of conspiracy against Prakash Singh Badal and Sukhbir Singh Badal.

Even on this count, he could not collect any material because the Granthi, whom

the respondent No.3 claimed to have examined, has stated that the said pardon was

rightly granted, although it should not have been granted in a hurried manner. This

Court fails to understand as to how and why a purely religious issue, which was

dealt with by the top religious leaders of Sikhs, has been brought into picture by

respondent No. 3. Surprising thing is; that even after making effort to find out and
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establish the allegation of conspiracy against Prakash Singh Badal and Sukhbir

Singh Badal; and despite mentioning their names in the charge sheet and recording

therein that their conspiracy is established, the respondent No. 3 did not array them

as accused by filing any charge sheet against them in these two FIRs, so far. This

is despite the fact that the charge sheet; in which the alleged role of Prakash Singh

Badal and Sukhbir Singh Badal has been mentioned by the respondent No.3 was

prepared way-back on 23.5.2019. Despite passage of about two more years, no

charge sheet has been filed against above mentioned two political entities. This

omission on the part of the respondent No.3 to file report under Section 173

Cr.P.C. against above said two politicians; despite the fact that he has been

repeatedly highlighting their participation in the conspiracy and in influencing

outcome of the investigation, and the fact that the respondent No.3 went to the

extent of giving an interview to a TV Channel during high time of election process,

shows only one thing that the present investigation has been kept by the respondent

No.3 as political horse to be flogged only at an opportune time, whenever the

elections are around the corner or when it otherwise suits him. Except this there is

no justification for not filing challan against them despite having recorded in the

earlier charge sheet that the allegations of conspiracy against the above said two

political entities stand established. The only possible fact which prevents filing

charge-sheet against these two leaders can be that there is no evidence against both

of them. Hence, the conduct of the respondent No.3 and methodology adopted for

carrying out the investigation by him goes to substantiate the allegations made by

the petitioners that the respondent No.3 was acting with an intention to further the

political agenda and was not carrying out a comprehensive and impartial

investigation.

Next, it would be appropriate to test the assertions of the petitioners

that a serious prejudice has been caused to them by mala fide investigation of the
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respondent No.3, who was bent upon destroying the FIR No. 192 dated 14.10.2015

and falsely roping in the police officers and the political functionaries in FIR No.

129 dated 7.8.2018. In this regard; after referring to the charge sheet filed by the

respondent No. 3 in FIR No. 129 dated 7.8.2018 and FIR No. 192 dated

14.10.2015, the petitioners have rightly pointed out that the respondent No.3 has

recorded the statements of some of the witnesses who have deposed in their

statements under Section 161 Cr.P.C. in FIR No. 129 dated 7.8.2018 directly

contrary to what they had deposed before the Inquiry Commission and what they

deposed during the partial investigation in FIR No. 192 dated 14.10.2015. This has

not happened qua one or two stray witnesses. Rather several police officials have

changed their statements to further the allegations made in FIR No. 129 dated

7.8.2018 by going totally contrary to the record and in contravention of their earlier

statements. Seen in context of the allegations of the petitioners that they were

pressurized to become approver/witnesses in FIR No. 129 dated 7.8.2018, and to

withdraw their writ petitions under a threat of false implication in these two

criminal cases, the possibility of same thing happening to these turn-coat police

officials, cannot be ruled out. This aspect is further amplified by the fact that the

same very witnesses while making statements under Section 161 Cr.P.C. in FIR

No. 192 dated 14.10.2015 have selectively changed their version and omitted from

their statements made in FIR No. 129 dated 7.8.2018 that part of their statements

which would have inculpated the protestors in the crime in FIR No. 192 dated

14.10.2015. This is clear from the statements of the witnesses SI Balwant Singh,

HC Jang Singh, HC Gurvinder Singh ASI Jagjit Singh and Contable Gurpreet

Singh recorded by the respondent No.3. This leads to a conclusion that the

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. Statements of the above said witnesses as recorded in FIR No. 129 dated
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7.8.2018 and FIR No. 192 dated 14.10.2015 have been placed on record by the

petitioners and these statement do substantiate their selective omissions which

tends to save the protestors from the crime. 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.

This also establishes that the respondent No.3 was conducting only manipulative

exercise in the name of investigation; to declare some persons as innocent and to

make some persons accused at his whims; instead of collecting any evidence

sufficient to ensure conviction of anyone of them.

Still another aspect which deserves to be noticed is that the petitioners

are the complainant in FIR No. 192 dated 14.10.2015. That FIR contains the

details of incident including the orders passed by the Civil District Administration

for handling the law and order situation and large number of police persons are

stated to have been injured, including the petitioner-HC Rashpal Singh who was

seriously injured in the incident, which is duly supported by several MLRs of

police persons. However, the respondent No. 3 has not bothered to investigate the

version of the police as contained in the FIR No. 192 dated 14.10.2015 by taking

into account the relevant material; as mentioned in the FIR; and by recording the

statements of the Civil Administrative Authorities. None of the injured police

witnesses has been examined by the respondent No.3 to ascertain the veracity of

the version of the police, as recorded in the FIR No. 192 dated 14.10.2015. When

confronted with the situation, learned Counsel for the State has taken shelter under

his often repeated submission that the investigation is still under process. Despite

the investigation of the FIR No. 192 dated 14.10.2015 being under process; as

submitted by the state counsel, by alleging against him fabrication of record and

embezzlement of empties of the police fired rounds, the petitioner has been made

accused, and charge sheet has been filed against him. In that charge-sheet, again,

the respondent No. 3 has written that the police resorted to unprovoked firing upon

the peaceful protestors. That part of the report is as under:

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The instant FIR No.192/2015 was registered by the then SHO

Gurdeep Singh (now accused in this case) against Bhai Panthpreet
Singh Khalsa and other persons on the allegations of instigating the
protestors and causing obstruction to the general public apart from
other allegations. The background of the case is that on 14.10.2015,
people were sitting on a peaceful dharna, at Kotkapura Chowk, in
protest of a series of incidents of sacrilege of Sri Guru Granth Sahib
Ji, which occurred at village Bargari and Burj Jawaharsinghwala and
also in the other parts of the State of Punjab. They were observing
holy prayers while sitting on peaceful dharna, force was used by the
police. Investigation suggests that with a view to justify the unlawful
police action, an FIR No.192 dated 14.10.2015 under Sections 307,
353, 332, 323, 382, 435, 283, 120-B, 149, 149 IPC, 25 Arms Act and
3, 4 of Prevention of damage to Public Property Act, 1984, was
registered at Police Station City Kotkapura, Faridkot against Bhai
Panthpreet Singh Khalsa and others by the police.
… It is also submitted that no evidence has come on the file during the
investigation against Bhai Panthpreet Singh Khalsa and 8 others (as
per column No.2; List attached) who were arrested on 14.10.2015 and
released on 16.10.2015 by the court of Illaqa Magistrate, Faridkot. As
such they have been found innocent in this case.

Hence a conclusion qua the allegations in FIR No. 192 dated

14.10.2015 has been recorded by the respondent No.3 despite the fact that not even

the relevant witnesses have been examined by him in FIR No. 192 dated

14.10.2015. Not only this, the respondent No.3 has also declared all those the

protestors; who were mentioned in FIR No. 192 dated 14.10.2015 by name as

accused of instigating violence and indulging in damaging of the public and private

property besides attacking on the police, as innocent; despite the fact that not even

a single injured police witness has been examined by him in FIR No. 192 dated

14.10.2015. This is the height of the arbitrariness in investigation on the part of the

respondent No.3. The respondent No.3 is repeatedly declaring that the police

RAJ KUMAR
resorted to ‘unprovoked firing’ on ‘peaceful protestors’; despite the fact that the
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magistrate present on the spot had assessed the situation that had arisen on the spot

and had granted permission to use tear gas in the first instance, lathi charge

thereafter, and the gun firing at the third stage. As per record, this permission was

granted on the basis that the protestors were resorting to large scale violence and

destruction of property; and that because of this the situation had gone out of

control. The police were acting only under the orders of the civil authorities,

including the SDM. However, none of the civil authorities or the SDM has been

made an accused in this case, nor their version recorded anywhere says that the

firing was unprovoked or that the protestors were peaceful. Rather their statement

recorded in other FIR supports the version of police, despite a bit convenient

addition to their statement as an afterthought. The petitioner, who is the

complainant in FIR No. 192 dated 14.10.2015; has been made an accused in that

FIR for embezzlement of empties of ten fired shots; allegedly fired by the police

official on protestors; by asserting that he had shown deposited these 10 empties

with MHC of Police station but the MHC had denied the receipt of such empties.

The reason for involvement of the petitioners in FIR No. 192 dated 14.10.2015 as

an accused for embezzlement of empties of fired shot is also awkward one. On the

one hand, the respondent No.3 has written in the report that the police persons;

whom the petitioner claimed to have fired those shots during police firing; have

denied having fired any such shots; on the other hand the respondent No.3 is

accusing the petitioner to have embezzled empties of those fired-shots. If the shots

were not fired as per the respondent No.3 and as per those police officials, then

there is no question of there being empties of the same and consequently, there

cannot be any embezzlement of the same by the petitioner. Therefore, illogical

nature of the attempt by the respondent No.3 to involve the petitioner also shows

his insistence to rope in the petitioner by hook or crook.

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The respondent No.3 in his report under Section 173 Cr.P.C. in both

FIR No. 129 dated 7.8.2018 and FIR No. 192 dated 14.10.2015 has recorded that

the police resorted to unprovoked firing upon peaceful protestors resulting into

injuries to the protestors. However, the material brought on record and relied upon

by the respondent No. 3 only; suggests otherwise, of course, subject to any fair

investigation. The respondent No.3 has recorded the statements of some of the

official witnesses in FIR No. 129 dated 7.8.2018. All these witnesses have mainly

deposed regarding the violence by the protestors. However, this aspect of their

statements has totally been obliterated by the respondent No.3. Further, although

the report of the Inquiry Commission is not on record of this case, however, the

respondent No.3 has reproduced some portion of the report of the second Inquiry

Commission in the charge-sheet; wherein the video recording of the incident is

described. Although the video recording can be a deceptive material because of its

susceptibility to manipulation post-recording and because of the fact that video

recording is always a function of place and angle of recording; and is also

dependent upon the intention of the person recording the same, yet in this case the

respondent No.3, in his own wisdom, has relied upon the same and made it a part

of the report under section 173 Cr.P.C. in FIR No. 129 Dated 07.08.2018. That

description, as given in the report of Inquiry Commission and as made part of the

report under section 173 Cr.P.C. in FIR No. 129 dated 07.08.2018, itself suggests

contrary to the assertion that the protestors were ‘peaceful’ or the firing was

‘unprovoked’. Rather, this recording suggests that the events in that occurrence

happened in the sequence and in the manner as is recorded by the police in FIR No.

192 dated 14.10.2015. The relevant description; as is relied upon the in the report;

is reproduced herein below:

(L) The file “OK” contains CCTV footage of 21.19 minutes

regarding incidents of police action at Kotkapura Chowk. The
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description of this video is more or less similar to the

description given in the “Inquiry Commission’s Report” on
page 57 to 60. The same is reproduced as under and a copy of
the page 57-60 is also enclosed herein with as Annexure K(I).
“The relevant detail in this regard would show that the day light
had appeared at about 6.18 AM when the pictures on the
cameras turned to coloured one from black and white. SSP
Faridkot along with his Gunman carrying assault rifles is also
seen at 6.24 AM but otherwise all is quite till 6.28 AM. At
about 6.24 a.m., police is seen encircling the protesters who are
busy with their routine quietly.
At 6.28.11 AM, police is seen closing in. At this
movement, DIG Mr. Khatra is seeing talking to DIS AS Chahal
and then both proceed to the place where the protesters are
sitting. SSP, Faridkot, SSP Mansa, SSP Moga and DSP
Kotkapura had accompanied both the DIGs when they went to
the protesters. DIG Khattra and DIG Mr. Chahal along with
SSP Faridkot are seen reaching the protesters. At 6.30.19 AM,
DIG Mr. Khattra is seen talking to the protesters like Bhai
Panth Preet Singh. Mr. Chahal is standing behind wearing a
civil dress. DSP Kotkapura is also seen nearby. On the other
side, police is also seen closing in further at 6.31.30 AM. DIR
Mr. Khattra is seen sitting down and talking to Bhai Panth Pree
Singh while DSP Kotkapura is noticed standing. This is at 6.32
AM. Simultaneously, Mr. Chahal is seen saying something
while waving his hand at 6.33.06 a.m. DIG Mr. Khattra is seen
getting up at 6.34.10 AM and all the officers are seen returning
back to Mr. Umranangal standing on Moga road side. Police is
seen further closing in at 6.35 AM. DIG Mr. Khattra, DIG A.S.
Chahal and other officers who had gone to exchange talk with
the protesters are seen reporting back to Mr. Umranangal at
6.35.07 AM. Discussion amongst the officers with Mr.
Umranangal then continues up to 6.37.09 a.m. Mr. Umranangal
is continuously seek talking on the phone even up to 6.38.50
a.m.
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At 6.40.40 a.m., but is seen entering the chowk while

being reversed. Vajra vehicle is also seen standing nearby at
that time. Bus is brought very near to the crowd at 6.42 a.m.
while the officers are seen engaged in intensive talks. At
6.42.45 a.m. Police is seen coming forward towards the crowd
almost in a charging position. From the Jaito road side camera,
Mr. Umranangal is seen directing the police official to proceed
further towards the protesters at 6.42.44 a.m. Commotion
amongst the protesters is also seen from this side at 6.43.10
a.m. Some protesters are seen being assaulted and pushed
towards PRTC Bus side at about 6.44.10 a.m. and a group of
protesters are seen coming out of the pandal and are taken to the
stationed buses at 6.44.20 am. At 6.44.11 a.m., police is seen
catching Bhai Panthpreet Singh and others. Some of the
protesters get up perhaps to see what is happening. Police is
also seen start using lath charge. Soon thereafter at 6.44.49 a.m.
use of water cannon starts. The crowd gets dispersed from the
chowk with the force of water. At 6.45.40 a.m. police then is
seen beating the crowd. At 6.46 a.m., some police personnel are
seen beating the protesters while SSP Sharma is also seen using
stick from camera fixed on Faridkot road side. Police is seen
attacking Bhai Panthpreet Singh at 6.46.08 a.m. Soon
thereafter, police is seen lifting Bhai Pantpreet Singh. With the
force of water thrown from water cannon vehicle, tent pitched
by the protesters is seen partially uprooted. At 6.45.30 a.m. Riot
control Vajra vehicle is seen appearing on the scene. The police
is also seen dragging Bhai Panthpreet Singh when some
protesters lied over him. With the use of water cannon, the
police is also seen running from the chowk. At about 6.47.20
a.m., the protesters are seen returning to the chowk when the
water cannon vehicle is seen losing its direction. The protesters
are seen using stones. Some of the protesters are also seen with
swords in their hands. At 6.48 a.m., one person is seen being
evacuated by the protesters, who apparently is seriously injured.
At 6.48.40 a.m. smoke is seen. The protesters are seen returning
RAJ KUMAR to the chowk. During this time the protesters are also seen
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attacking the water cannon vehicle as well as the Vajra. The

police had disappeared from the chowk when the protesters are
seen in the chowk. Suddenly, lightening with fire is seen and at
6.49.10 a.m., protesters start running towards Muktsar road side
while being chased by the police. The chowk is cleared of the
protesters at 6.49.35 a.m. Police is entering the chowk at
6.49.50 a.m. First officer seen is SSP Faridkot with his gunman.
His gunman is firing in the air. At 6.50.20 a.m., only police
officials are seen in chowk. Some of the constables are seen
throwing stones on the protesters. More police officials are seen
entering the chowk. Police is also seen catching hold and
beating one protester in the chowk mercilessly. At 6.51 to 6.52
a.m., Vajra vehicle and tear gas vehicles are seen in the chowk.
The Tear Gas vehicle is seen aimlessly firing tear gas shells
without any purpose. At 6.49.27 a.m., one constable is also seen
firing from SLR aimed and firing directly. At 6.52.27 a.m,
Charanjit Sharma is seen in the chowk with his Gunman. His
Gunman is seen firing in the air. At 6.53.20 a.m., the police is
seen uprooting the tent and thereafter police is seen roaming
around in the chowk aimlessly beating one protester with danda
and rod. all the senior officers like SSP Hardyal Singh Mann,
Mr. Umranangal, Mr. Chahal, Mr. Charanjit Sharma are seen
appearing on the scene. Mr. A.S. Chahal and Mr. Khattra are
seen giving direction to the police officials. In one of the
camera, Charanjit Sharma is seen with a assault rifle in his hand
and is also seen empting the rifle and then handing it over to his
Gunman. In one camera Mr. A.S. Chahal, DIG, is seen with a
revolver in his hand while one policeman (probably his
gunman) with revolver facing upward in his hand is following
Mr. Amar Singh Chahal wherever he goes. Mr. Amar Singh
Chahal is also seen handing over his revolver to one person.
Charanjit Sharma and other officials are seen indicating with
their hand to someone present on the building top to come
down. It can be noticed that persons who came down on
indication are being given beating. This alls has happened
RAJ KUMAR between 6.52 to 7.00 a.m. Thereafter, no footage is available.
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Between 6.48.35 a.m. to 6.50 a.m., lot of lightening is seen

apparently with firing. When the crowd had returned to
Kotkapura chowk after initial dispersal, some protesters are
seen setting the Vajra vehicle on fire. Except for Driver of the
Vajra vehicle, no police officer is seen being attacked by the
protesters. In fact, as soon as the use of water cannon
commenced, the police force is seen running away from the
chowk for some undisclosed reasons and had appeared only
while firing which is more noticeable on the CCTV footage
from camera on Moga road side. From this side, the firing and
lightening is seen intermediately from 6.49.16 a.m. to 6.52.48
a.m. The lathi charge which the policed had initially done is
also seen from Muktsar road side. When the police had returned
to the chowk while firing, protesters are seen running helter
skelter from the camera on Muktsar road side. In this manner,
the chowk was cleared within 3 minutes. The action of the
police in destroying/damaging the sound system lying in a
white small tempo is clearly seen at 6.53.46 a.m. The police is
seen putting this tempo on fire 6.58.45 a.m. This all is
happening in the very presence of senior officers namely DIG
A.S. Chahal, IG P.S. Umranangal. The police constables are
seen destroying the music system by repeatedly hitting the same
with force on ground.”

Needless to say, that 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.

Accordingly, this court finds that the investigation carried out by the

respondent No.3 is not free from blemish. His personal malice and malafide
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functioning by totally usurping the powers of SIT constituted in the first instance,

has been duly demonstrated on record. The petitioners have also been successful in

showing that the respondent No.3 has 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 Cr.P.C. in police FIR No.192 dated 14.10.2015 qua the

violence by the protestors; whereas that finds mentioned in their statements

recorded in FIR 129 Dated 07.08.2018. The record also shows that the respondent

No.3 has declared the accused mentioned in the FIR No.192 dated 14.10.2015 as

innocent even without recording statement of a single injured police witness. Also

the conclusions drawn by the respondent No.3 are found to be against the

statement of witnesses recorded and the material collected by him only. Moreover,

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. Public pressure to get the alleged

erring police officials convicted also appears to have adversely affected the

fairness of the investigation. As a result the fairness of investigation stands

vitiated. The investigation conducted by the respondent No.3 also suffers from

malice, irrationality and absurdity. Hence, this court is of the considered opinion

that this is one of the rare cases where the court is under duty to step-in to prevent

miscarriage of justice, instill confidence in the investigation and also to pre-empt

the misuse of the process of the court; by quashing the investigation and the

consequent report under section 173 Cr.P.C. filed in these two cases, while leaving

state to fairly investigate these two cases again.

RAJ KUMAR
2021.04.23 18:23
I attest to the accuracy and
integrity of this document
 CWP No. 17459 of 2019 (O&M) with
CWP No. 17460 of 2019 (O& M) -87-

In view of the above, the investigation conducted by the respondent

No. 3 in FIR No. 129 dated 7.8.2018 and FIR No. 192 dated 14.10.2015, both of

Police Station City Kotkapura and the consequent charge-sheet filed by him, are

liable to be quashed. Ordered accordingly.

This court finds that what could have been a simple investigation of a

crime committed either by the protestors or by the police or by both, have been

made to fester and convert itself to a quagmire wherein every concerned person

finds himself entrapped. This has resulted from a dangerous mixing of religion,

politics and the police administration; because of which the aggrieved persons;

whether it be the police persons or the injured from the protestors; must be finding

themselves to be cheated and endlessly waiting for real justice. But the process

seems to be influenced by what some hyper-charged section of society pressed for,

as is clear from even registration of one FIR No.130 dated 21.10.2015, which

though is not the subject matter of the present petition; but which was registered

under section 302 IPC by specifically saying that it was being so registered

because it was the sentiments of people that FIR under section 302 IPC should be

registered. 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. To ensure fairness

and impartiality; the investigation deserves to be conducted by an independent

team of senior police officers; by being totally free from all kinds of internal or

external extraneous pressures and interference. Accordingly, the investigation of

the cases involved in the present petitions, is ordered to be conducted by a Special

Investigating Team of senior police officers; which is hereby conferred a status of

RAJ KUMAR
2021.04.23 18:23
I attest to the accuracy and
integrity of this document
 CWP No. 17459 of 2019 (O&M) with
CWP No. 17460 of 2019 (O& M) -88-

senior-most rank for the purpose of section 36 of Cr.P.C. and which is ordered to

be constituted by the State with the following directions:

(i) The State Government shall constitute a Special Investigation Team

(SIT) of three senior IPS officers from the State of Punjab, which

shall not include the respondent No.3, and which shall include at least

one officer senior to the respondent No.3 in rank and designation, to

conduct the investigation in the FIR involved in the present petitions,

i.e.; FIR No. 192 dated 14.10.2015 and FIR No. 129 dated

07.08.2018;

(ii) 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;

(iii) 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;

(iv) Once constituted, that SIT shall not be changed by the State

Government except in case of retirement, incapacity or death of the

officer concerned;

(v) 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;

(vi) 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. Further,

they shall not respond, directly or indirectly, to any doubt or opinion

RAJ KUMAR
2021.04.23 18:23
I attest to the accuracy and
integrity of this document
 CWP No. 17459 of 2019 (O&M) with
CWP No. 17460 of 2019 (O& M) -89-

expressed by anyone from the public or the religious or the political

establishments;

(vii) The investigation of these FIRs shall be concluded as expeditiously as

possible, preferably within a period of six months from the date of the

constitution of SIT.

Before parting with the judgment, this court expresses its hope that the

new SIT shall function in a totally fair and impartial manner so that the

expectations of affected persons are not belied again.

All the pending applications are disposed of accordingly.

(RAJBIR SEHRAWAT)
JUDGE
09.04.2021
Ashwani/Sarita/Raj Kumar

Whether speaking/reasoned: Yes No

Whether Reportable: Yes No

RAJ KUMAR
2021.04.23 18:23
I attest to the accuracy and
integrity of this document