In what has come yet again as a shot in the arm for personal liberty, the Punjab and Haryana High Court has just recently on August 19, 2021 in a learned, laudable, landmark and latest judgment titled Shobha vs State of Punjab and Others in CRWP-7882-2021 while allowing the habeas corpus petition filed by the wife of former DGP Sumedh Singh Saini ordered his release from the custody of the State Vigilance Bureau calling his arrest ‘patently illegal’. A single Judge Bench of Justice Arun Kumar Tyagi ordered his release just over 24 hours after he was arrested by the Vigilance Bureau in alleged cheating, forgery, corruption case. He has been booked under Sections 409, 420, 467, 468, 471 and 120-B of the IPC and Sections 13(1)(a) read with Section 13(2) of the Prevention of Corruption Act, 1988.
To start with, the single Judge Bench comprising of Justice Arun Kumar Tyagi which has taken up the case for hearing through video conferencing first and foremost sets the ball rolling by putting forth in para 1 that, “The petitioner has filed present criminal writ petition under Article 226 of the Constitution of India seeking the following reliefs:-
(i) Issuance of the writ in the nature of habeas corpus directing the respondents to produce the detenue Sumedh Singh Saini who is under mala fide and illegal detention of Vigilance Bureau at Vigilance Bhawan, SAS Nagar (Mohali) without any cause of action inspite of protection vide orders dated 11.10.2018, 23.09.2020 and order dated 12.08.2021 (in case FIR No.13 dated 02.08.2021 under Sections 13(1)(b) read with Section 13(2) of the Prevention of Corruption Act, 1988 as amended by the Prevention of Corruption (Amendment) Act, 2018 and Sections 109 and 120-B of the IPC registered at Police Station Vigilance Bureau, Phase-1, SAS Nagar, Mohali passed by this Court;
(ii) Appointment of Warrant Officer to raid the Vigilance Bhawan, Sector 68, SAS Nagar (Mohali) to get the detenue released from unwanted, illegal and manipulated detention on account of political vendetta by the State Government and personal vendetta of respondent No.5;
(iii) To protect the detenue from torture, inhuman treatment, mental and physical and to provide emergency medical aids in view of chest and heart related ailments; or
(iv) Any other direction or orders which this Court may deem fit in the facts and circumstances of the case.”
To put things in perspective, the Bench then states in para 2 that, “Briefly stated the petition has been filed on the averments that detenue-Sumedh Singh Saini retired as DGP Punjab on 30.06.2018 and since then he has been target of State Government ruling in Punjab for implicating him in the following four criminal cases :-
(i) FIR No.77 dated 06.05.2020 registered under Section 364, 201, 344, 330, 219 and 120-B of the IPC at Police Station City Mataur, District SAS Nagar, Mohali to which Section 302 of the IPC was added later on.
(ii) FIR No.129 dated 07.08.2018 registered under Sections 307, 326, 324, 323, 341, 201, 218, 120-B, 34, 148, 149 of the IPC and Sections 25 and 27 of the Arms Act, 1959 at Police Station City Kotkapura, District Faridkot (added as accused vide G.D. No.31 dated 09.10.2020).
(iii) FIR No.130 dated 21.10.2015 registered under Sections 302, 307, 341, 201, 218, 166-A, 120-B, 34, 194, 195 and 109 of the IPC and Sections 25 and 27 of the Arms Act, 1959 at Police Station Bajakhana, District Faridkot (added as accused vide G.D. No.16 dated 27.09.2020).
(iv) FIR No.13 dated 02.08.2021 registered under Section 13(1)(b) read with Section 13(2) of the Prevention of Corruption Act, 1988 as amended by Prevention of Corruption (Amendment) Act, 2018 and Sections 109 and 120-B of the IPC registered at Police Station Vigilance Bureau, Phase-1, Punjab at SAS Nagar (Mohali).”
As we see, the Bench then states in para 2.1 that, “In all the four cases the petitioner has been allowed concession of anticipatory bail under Section 438 of the Cr.P.C.”
While elaborating in detail, the Bench then envisages in para 2.6 that, “The detenue filed CRM-25383-2021 in CRM-M-32417- 2021 seeking direction to the Investigating Officer not to arrest him for any other additional offences without seeking prior permission of the Court in view of guidelines laid down by Hon’ble Supreme Court in Pardeep Ram Vs. State of Jharkhand : 2019 (3) RCR (Criminal) 538. The petition was withdrawn as the Special Prosecutor appearing for the State made statement that State was bound to follow said guidelines and the petition was dismissed as withdrawn. On 18.08.2021 at about 7:30 p.m. the detenue along with his lawyer Ramandeep Singh appeared before Varinder Singh Brar, PPS, Joint Director (Crime), Vigilance Bureau, Punjab, SAS Nagar (Mohali) at Vigilance Bhawan, SAS Nagar (Mohali) for joining investigation in compliance with order dated 12.08.2021. After making him wait for about half an hour his application were endorsed by Amritpal Singh, A/MHC Vigilance Office at 08:08 p.m. but thereafter gates of the Vigilance Bhawan were closed and the detenue was illegally detained and his lawyer was pushed out of the Vigilance Bhawan. The detenue was illegally detained to show to the public that the statement made on the floor of the house by Cabinet Minister Punjab while tabling the report of Ranjit Singh Commission holding the detenue guilty and to harass him in some false case was fulfilled. The act of the Vigilance Bureau is a blatant and flagrant abuse of the power vested in the police. The detenue is being subjected to torture both mental and physical on directions of respondent No.4-B.K. Uppal, Chief Director Vigilance who is a stooge of respondent No.5-Bharat Inder Singh Chahal. Earlier attempt was made to detain and humiliate the detenue in FIR No.13 of 02.08.2021. The police seized the house of the detenue from 02.08.2021 4:00 p.m. to 03.08.2021 2:00 p.m. and his wife and daughter were subjected to interrogation for disclosing his whereabouts as if he was a dreaded criminal. The entire house was searched by the police party without search warrant and two DVRs installed on the front gate and back gate were carried away. Although the detenue has been granted interim anticipatory bail in case FIR No.13 dated 02.08.2021 registered by the Vigilance pertaining to an agreement to sell with accused namely Surinderjit Singh Jaspal father of Nimratdeep Singh, Executive Engineer, PWD B&R against whom DA Inquiry No.3 dated 17.02.2020 was pending. It is feared that his detention is in some other DA case bearing FIR No.11 dated 17.09.2020 under Sections 409, 420, 467, 468, 471, 120-B of the IPC and Section 13(1)(a) read with Section 13(2) of the Prevention of Corruption Act Police Station Vigilance Bureau, Mohali in which Surinderjit Singh Jaspal, his son Nimratdeep Singh along with six others have been challaned by the police and are facing trial. H.No.3048, Section 20-D, Chandigarh has been declared to be proceeds of crime acquired by Nirmatdeep Singh and his father and has been provisionally attached under Section 3 of the Criminal Law (Amendment) Ordinance, 1944 as per Section 18(a) of the Prevention of Corruption Act vide order dated 16.07.2021 passed by learned Additional Sessions Judge, SAS Nagar (Mohali). The detenue was never made accused in the case as he was not having any financial transaction with them except that he was in occupation of H.No.3048, Section 20-D, Chandigarh as tenant w.e.f. 18.10.2018.”
While narrating on the turn of events, the Bench then reveals in para 2.7 that, “After the change of government in Punjab in the year 2018, the Government has pronounced its decision to arrest the detenue. Fearing his arrest and humiliation by digging of some old case during his career during performance of his official duties, the detenue approached this Court by filing petition CRM-M-45242-2018 under Section 482 of the Cr.P.C. seeking direction to the State of Punjab to hand over the investigation of any case registered against the detenue to the CBI or some other independent agency and to keep any proposal for arresting him in any criminal matter in abeyance for giving him specific period of time so as to enable him to seek recourse to his legal remedies. Protection was granted to the detenue vide order dated 11.10.2018 by directing that till the next date of hearing, in case the petitioner is sought to be arrested in Kotkapura sacrilege case or in case involving Aman Skoda of Moga or in any case pertaining to an incident of the period while the petitioner remained as State Vigilance Head or Inspector General of Police, Intelligence, Punjab or Director General of Police Punjab, then one week’s advance notice shall be afforded to the petitioner before effecting his arrest so as to enable him to have recourse to remedies available to him.”
In addition, the Bench then adds in para 2.8 that, “The protection was further extended vide order dated 23.09.2020 to any incident pertaining to entire service career of the petitioner.”
While elaborating on the chain of events in this case, the Bench then remarks in para 3 that, “The petition filed by detenue-Sumedh Singh Saini bearing CRM-M-45242-2018 was listed before this Court today on application filed by detenue-Sumedh Singh Saini for pre-ponement of the date of hearing fixed as 24.11.2021 to some earlier date. At the time of hearing on the application for pre-ponement it was brought to the notice of the Court that the petitioner had been arrested on 18.08.2021 in circumvented violation of orders dated 11.10.2018 and 23.09.2020 passed by this Court. The application for pre-ponement of the case was allowed. On being asked, this Court was informed by Mr. Sidharath Luthra, learned Senior Counsel assisted by Mr. Sartej Singh Narula, Advocate that the petitioner has been arrested in case FIR No.11 dated 17.09.2020 registered under Sections 409, 420, 467, 468, 471 and 120- B of the IPC and Sections 13(1)(a) read with Section 13(2) of the Prevention of Corruption Act, 1988 as amended in 2018 at Police Station Vigilance Bureau Flying Squad-1, Punjab, Mohali. Vide order passed by this Court today i.e. 19.08.2021 respondent No.1-State was directed to file copies of the relevant documents including arrest memo prepared at the time of his arrest, document intimating him about the grounds of arrest, document intimating his family member/friend about his arrest and copy of the FIR through e-mail or through special messenger. Accordingly, copies of FIR No.11 dated 17.09.2020, letter adding offences, arrest memo, intimation of arrest, reasons of arrest, reasons for arrest (Report of DSP), interim application No.CRM-25383-2020 in CRM-M-32417-2021, order in CRM-25383-2021 and habeas corpus petition have been filed before this Court. Mr. A.P.S. Deol, Sr. Advocate for the petitioner has also filed copies of FIR No.11 dated 17.09.2020 and FIR No.13 dated 02.08.2021 along with its vernacular before this Court.”
Furthermore, the Bench then discloses in para 4 that, “The habeas corpus petition was listed for hearing before Hon’ble Mr. Justice Avneesh Jhingan who directed the same to be placed before other Bench after soliciting orders from Hon’ble The Chief Justice. The habeas corpus petition was thereafter listed before the Bench of Hon’ble Mr. Justice Vikas Bahl. Copies of the applications bearing No.CRM-25749-2021 and CRM-25750-2021 and copy of order dated 12.08.2021 were filed before the Bench of Hon’ble Mr. Justice Vikas Bahl and after considering the facts regarding pendency of CRMM-45242-2018 before this Bench, Hon’ble Mr. Justice Vikas Bahl also directed that the present habeas corpus petition be listed before this Bench after obtaining the orders from the Hon’ble Chief Justice and the habeas corpus petition has been listed before this Bench under the orders of Hon’ble the Chief Justice.”
Most significantly, the Bench then minces no words to hold in para 33 that, “It may be observed that case FIR No.11 dated 17.09.2020 was registered on the basis of disproportionate assets inquiry against Nimratdeep Singh and others. Initially the FIR was registered against four persons namely Ravinder Singh Sandhu, Nagender Rao, Ashok Kumar Sikka and Shakti Sagar Bhatia. Nimratdeep Singh, Sunderjit Singh Jaspal, Taranjit Singh and Mohit Puri were nominated during investigation. Detenue-Sumedh Singh Saini has been nominated as accused in the case vide report dated 02.08.2021. The allegations against detenue-Sumedh Singh Saini in the above-said case are not that he received any bribe money from anyone or possessed any disproportionate assets or had any other financial transaction with the above-said accused persons except the transactions made under the rent agreement dated 15.10.2018 and agreement to sell dated 02.10.2019. In the present case the petitioner is alleged to have committed offence under Section 467 of the IPC by ante-dating agreement to sell purporting to have been executed on 02.10.2019 which was on plain paper and not on any stamp paper to create a defence to attachment of the above-said house which was allegedly acquired with bribe money taken by Nimratdeep Singh and given to his father Surinderjit Singh Jaspal. It is doubtful as to whether the allegations as to execution of agreement to sell dated 02.10.2019 to create a defence to attachment of the house satisfy the ingredients of Section 464 of the IPC so as to constitute the offence punishable under Section 467 of the IPC. Further, the incidents of taking of bribe are alleged to have taken place in the year 2014. The above-said house was allegedly purchased in the year 2017. Application for attachment was filed on 22.01.2021 and order for attachment was passed on 16.07.2021. Allegations in respect of the said agreements were also part of FIR No.13 dated 02.08.2021 in respect of which detenue-Sumedh Singh Saini has been granted interim anticipatory bail by the Coordinate Bench vide order dated 12.08.20212 passed in CRM-M-32417-2021. In view of the observations made by Hon’ble Supreme Court in T.T. Antony Vs. State of Kerala : 2001 (3) RCR (Criminal) 436. Said allegations could not form part of another FIR and the petitioner could not be arrested in FIR No.11 dated 17.09.2020 for the same alleged criminal acts which were subject matter of FIR No.13 dated 02.08.2021 which were specifically referred to in order dated 12.08.2021 and for which the detenue was granted interim anticipatory bail and therefore arrest of the detenue on substantially the same allegations is patently illegal.”
Be it noted, the Bench then observes in para 34 that, “Relevant material regarding arrest and detention of detenue-Sumedh Singh Saini is already before this Court and therefore, filing of any detailed reply to the habeas corpus petition is not required particularly when the relevant facts are ascertainable from the material on record and detailed submissions have been made by learned Counsel representing the petitioner and respondents No.1 to 4 before this Court. Further, the habeas corpus petition concerns serious issue of illegal detention of a person and grant of any adjournment for filing of any detailed reply may defeat the very purpose of filing of the habeas corpus petition and therefore, interim or final order on the basis of the same can be passed on the material produced before the Court unfolding all the relevant facts and circumstances of the case without granting adjournment for filing of any such detailed reply.”
It cannot be glossed over that the Bench then enunciates in para 38 that, “In Criminal Appeal No.742 of 2020 titled as ‘Arnab Manoranjan Goswami Vs. State of Maharashtra and others’ decided on 27.11.2020 it was held by Hon’ble Supreme Court that the High Court should not foreclose itself from the exercise of the power when the citizen is arbitrarily deprived of its personal liberty in an excess of State power. In that case Hon’ble Supreme Court observed in paras No.57 to 60 as under:-
“57 While considering an application for the grant of bail under Article 226 in a suitable case, the High Court must consider the settled factors which emerge from the precedents of this Court. These factors can be summarized as follows:
(i) The nature of the alleged offence, the nature of the accusation and the severity of the punishment in the case of a conviction;
(ii) Whether there exists a reasonable apprehension of the accused tampering with the witnesses or being a threat to the complainant or the witnesses;
(iii) The possibility of securing the presence of the accused at the trial or the likelihood of the accused fleeing from justice;
(iv) The antecedents of and circumstances which are peculiar to the accused;
(v) Whether prima facie the ingredients of the offence are made out, on the basis of the allegations as they stand, in the FIR; and
(vi) The significant interests of the public or the State and other similar considerations.
58 These principles have evolved over a period of time and emanate from the following (among other) decisions: Prahlad Singh Bhati vs NCT, Delhi : 2001 (4) SCC 280; Ram Govind Upadhyay vs Sudarshan Singh 2002 (3) SCC 598; State of UP vs Amarmani Tripathi 2005 (8) SCC 21; Prasanta Kumar Sarkar vs Ashis Chatterjee 2010 (14) SCC 496; Sanjay Chandra vs CBI 2012 (1) SCC 40; and P. Chidambaram vs Central Bureau of Investigation Criminal Appeal No.1605 of 2019 decided on 22.10.2019.
59 These principles are equally applicable to the exercise of jurisdiction under Article 226 of the Constitution when the court is called upon to secure the liberty of the accused. The High Court must exercise its power with caution and circumspection, cognizant of the fact that this jurisdiction is not a ready substitute for recourse to the remedy of bail under Section 439 of the CrPC. In the backdrop of these principles, it has become necessary to scrutinize the contents of the FIR in the case at hand. In this batch of cases, a prima facie evaluation of the FIR does not establish the ingredients of the offence of abetment of suicide under Section 306 of the IPC. The appellants are residents of India and do not pose a flight risk during the investigation or the trial. There is no apprehension of tampering of evidence or witnesses. Taking these factors into consideration, the order dated 11 November 2020 envisaged the release of the appellants on bail
J Human liberty and the role of Courts
60 Human liberty is a precious constitutional value, which is undoubtedly subject to regulation by validly enacted legislation. As such, the citizen is subject to the edicts of criminal law and procedure. Section 482 recognizes the inherent power of the High Court to make such orders as are necessary to give effect to the provisions of the CrPC ― or prevent abuse of the process of any Court or otherwise to secure the ends of justice . ‖ Decisions of this court require the High Courts, in exercising the jurisdiction entrusted to them under Section 482, to act with circumspection. In emphasising that the High Court must exercise this power with a sense of restraint, the decisions of this Court are founded on the basic principle that the due enforcement of criminal law should not be obstructed by the accused taking recourse to artifices and strategies. The public interest in ensuring the due investigation of crime is protected by ensuring that the inherent power of the High Court is exercised with caution. That indeed is one – and a significant – end of the spectrum. The other end of the spectrum is equally important: the recognition by Section 482 of the power inhering in the High Court to prevent the abuse of process or to secure the ends of justice is a valuable safeguard for protecting liberty. The Code of Criminal Procedure of 1898 was enacted by a legislature which was not subject to constitutional rights and limitations; yet it recognized the inherent power in Section 561A. Post-Independence, the recognition by Parliament of the inherent power of the High Court must be construed as an aid to preserve the constitutional value of liberty. The writ of liberty runs through the fabric of the Constitution. The need to ensure the fair investigation of crime is undoubtedly important in itself, because it protects at one level the rights of the victim and, at a more fundamental level, the societal interest in ensuring that crime is investigated and dealt with in accordance with law. On the other hand, the misuse of the criminal law is a matter of which the High Court and the lower Courts in this country must be alive. In the present case, the High Court could not but have been cognizant of the specific ground which was raised before it by the appellant that he was being made a target as a part of a series of occurrences which have been taking place since April 2020. The specific case of the appellant is that he has been targeted because his opinions on his television channel are unpalatable to authority. Whether the appellant has established a case for quashing the FIR is something on which the High Court will take a final view when the proceedings are listed before it but we are clearly of the view that in failing to make even a prima facie evaluation of the FIR, the High Court abdicated its constitutional duty and function as a protector of liberty. Courts must be alive to the need to safeguard the public interest in ensuring that the due enforcement of criminal law is not obstructed. The fair investigation of crime is an aid to it. Equally it is the duty of courts across the spectrum – the district judiciary, the High Courts and the Supreme Court – to ensure that the criminal law does not become a weapon for the selective harassment of citizens. Courts should be alive to both ends of the spectrum – the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment. Liberty across human eras is as tenuous as tenuous can be. Liberty survives by the vigilance of her citizens, on the cacophony of the media and in the dusty corridors of courts alive to the rule of (and not by) law. Yet, much too often, liberty is a casualty when one of these components is found wanting.” (emphasis supplied).”
Finally, the Bench then holds in para 39 that, “In view of the above referred judicial precedents and above discussed facts and circumstances of the case evidencing illegality of the arrest of the detenue, the habeas corpus petition is allowed and the detenue is held to have been illegally arrested in circumvented violation of protection orders dated 11.10.2018 and 23.09.2020 and interim anticipatory bail order dated 12.08.2021 passed by the Co-ordinate Bench of this Court. Therefore, the detenue is ordered to be released forthwith. However, the Investigating Officer of the case shall be at liberty to arrest the detenue after giving seven days notice in accordance with orders dated 11.10.2018 and 23.09.2020 and also seeking permission from the concerned Co-ordinate Bench of this Court hearing CRM-M-45242-2018 in which the detenue has been granted interim anticipatory bail on substantially the same allegations.”
At the risk of repetition, it must be said that the courts must always accord the highest priority to the personal liberty of any person and there must be prima facie strong grounds to arrest the accused person. In this case, we see that Justice Arun Kumar Tyagi of Punjab and Haryana High Court while rising to the occasion and placing personal liberty on the highest pedestal promptly ordered the release of former DGP Sumedh Singh Saini while hearing the habeas corpus petition filed by Sumedh’s wife and termed the arrest as “patently illegal”. Arrest has to be made by the police strictly as per the rules and not contrary to the rules. If it fails to comply then it is bound to end with a whimper as the Court will struck down the arrest so made that can be termed as “patently illegal” as we see also in this very noteworthy case also!