On June 9, Dismissed cop Gurmeet Singh Pinki, the whistle blower in the alleged involvement of former DGP Sumedh Singh Sain in the disappearance of Balwant Singh Multani, recorded his statement before the duty magistrate in the district court. Pinki recorded his statement under section 164 of Crpc. Moreover, in the apprehension of police registering murder charged against him, former DGP Sumedh Singh Saini was granted anticipatory bail by the Court of additional district and sessions judge Monika Goyal. Taking cognizance of the case proceedings, the complainant Palwinder Singh Multani, brother of Balwant Singh Multani, has moved an application before Sessions Judge Rajinder Singh Rai seeking transfer of the case from the Court of judge Goyal. Multani has alleged that he fears unfair proceedings in the case because he has sought transfer of the case.
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Facts in Brief:
- In 1991, during the Khalistani movement, Sumedh Singh Saini (hereinafter Saini) erstwhile Senior Superintendent of Police of Chandigarh arrested Balwant Singh Multani (hereinafter Multani) arrested in the wake of an August 1991 bomb blast in Saini’s official car that led to the death of three of his aides. Saini himself survived the blast with injuries. Balwant Singh Multani was the son of erstwhile Punjab cadre IAS officer Darshan Singh Multani.
- Multani was booked in December 1991 by Chandigarh police under the erstwhile Terrorism and Disruptive Activities (Prevention) Act.
- When he subsequently disappeared, Multaniwas shown as “escaped from police custodyof the Qadian in 1991.” Since then, his whereabouts were not known.
- Darshan Multani moved to Punjab and Haryana High Court to seek CBI inquiry. Hon’ble High Court allowed the appeal and asked CBI to register a case in July 2008. In 2011, the Supreme Court quashed the CBI quash on technical grounds. However, the Supreme Court gave the family the liberty to initiate fresh proceedings.
- On May 6, 2020, Palwinder Singh Multani, brother of Balwant Singh Multani, registered an FIR in the aforesaid case against Saini. Apart from Saini, seven other police personnel have been booked in the case along with an unknown person. The case has been registered under sections Sections 364 (kidnapping or abduction in order to murder), 201 (causing disappearance of evidence), 344 (wrongful confinement), 330 (voluntarily causing hurt to exhort confession) and 120B (criminal conspiracy) of the IPC, among others.
- Palwinder Singh has referred to a December 2015 cover story of Outlook magazine, where a former Punjab policeman, Gurmeet Singh alias Pinky, made purported disclosures about the conduct of state police during the days of the Khalistan militancy in Punjab. Quoting Palwinder’s complaint, the FIR states that Pinky’s disclosure suggests Saini gruesomely tortured Multani in police custody. It was only after Saini’s retirement did the family gather the courage to pursue the case against him again, the complaint states.
- According to Palwinder’s complaint, Multani was picked up from his phase 7 Mohali residence on December 11, 1991, and booked two days later under TADA. The family has alleged that Multani was tortured to death but was shown as having escaped from custody from a police station in Qadian, Gurdaspur, a week after the case was registered against him.
- A Special Investigation Team (SIT) has been constituted to investigate this case.
- On June 9, Pinki recorded his statement under S. 164 before Judge Monika Goyal. Saini was granted anticipatory bail. Palwinder moved the application to transfer the case to another judge as he fears unfair proceedings under Judge Monika Goyal.
Section 164& 408 of The Code of Criminal Procedure, 1973
- Recording of confessions and statements.
(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial: Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.
(2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.
(3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody.
(4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:-” I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.
(Signed) A. B. Magistrate”.
(5) Any statement (other than a confession) made under sub- section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded.
(6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried.
- Kidnapping or abducting in order to murder.—Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with 1[imprisonment for life] or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
- Power of Sessions Judge to transfer cases and appeals.
(1) Whenever it is made to appear to a Sessions Judge that an order under this sub- section is expedient for the ends of justice, he may order that any particular case be transferred from one Criminal Court to another Criminal Court in his Sessions division.
(2) The Sessions Judge may act either on the report of the lower Court, or on the application of a party interested, or on his own initiative.
(3) The provisions of sub- sections (3), (4), (5), (6), (7) and (9) of section 407 shall apply in relation to an application to the Sessions Judge for an order under sub- section (1) as they apply in relation to an application to the High Court for an order under subsection (1) of section 407, except that sub- section (7) of that section shall so apply as if for the words” one thousand rupees” occurring therein, the words” two hundred and fifty rupees” were substituted.
Section 201, 344, 330, 120B of the Indian Penal Code, 1860
- Causing disappearance of evidence of offence, or giving false information to screen offender.—Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false; if a capital offence.—shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; if punishable with imprisonment for life.—and if the offence is punishable with 1[imprisonment for life], or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; if punishable with less than ten years’ imprisonment.—and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both. Illustration A, knowing that B has murdered Z, assists B to hide the body with the intention of screening B from punishment. A is liable to imprisonment of either description for seven years, and also to fine.
- Wrongful confinement for ten or more days.—Whoever wrongfully confines any person for ten days, or more, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
- Voluntarily causing hurt to extort confession, or to compel restoration of property.—Whoever voluntarily causes hurt for the purpose of extorting from the sufferer or from any person interested in the sufferer, any confession or any information which may lead to the detection of an offence or misconduct, or for the purpose of constraining the sufferer or any person interested in the sufferer to restore or to cause the restoration of any property or valuable security or to satisfy any claim or demand, or to give information which may lead to the restoration of any property or valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
120B. Punishment of criminal conspiracy.—
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
The issue, in this case, will Sessions Court will allow Palwinder’s appeal to transfer the judge. Session’s Court has the power to transfer the case under Section 408 of the Code of Criminal Procedure. The following are the grounds on which a case could be transferred from one Court to another court are the following:
- To meet the ends of justice:- It is the utmost duty of the Court to take all such measures to meet up the ends of justice and to pronounce the judgment which should also send a right message in the society that justice was not only done it was done with an impact that it appears that justice is done. This ground to meet the ends of justice hasbroad connotations. It could be readily understood that this authority would have high degrees of discretionary powers, which could be used in accordance with the exact quantum to provide justice to all the subject litigants. The factual matrix of every trial, whether civil or criminal proceedings, is quite different, so to ascertain a pre-managed situation for dealing may not ensure a fair trial or may even end up causing irreparable loss to the interest of the litigants. Therefore the Court has been vested with such discretionary authority to determine such a question regarding the transfer of Court.
- As per the inquiry report of any superior judicial officer such as any Chief judicial magistrate or any sessions judge the trial must not be conducted by a particular magistrate or any other officer such a report shall also be deemed to be a valid ground for such transfer of a case from one Court to another.
- The trial court deems it fit to be transferred from its purview, or the determination of the trail may involve such a substantial question of law. Determining substantial question of law far above its jurisdiction would render the complete trail fruitless.
- The Court has limited jurisdiction over the subject matter of the dispute in such limited or shared juridical issue the Court trying the matter will have a liberty to transfer the case to the Court which has competent jurisdiction to try that matter conclusively so that the complete trail could not be failed because of lack of complete jurisdiction.
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- The mutual collision between the party and other judicial officers. The possibility of corruption is no stranger to the judicial fraternity. In such cases, to avoid the failure of interest of the actual aggrieved party between the litigants, the Court provides a reasonable opportunity to the party, which may have such apprehension.
- The judicial officer being engaged or involved in the litigation by some or the other. In such a scenario, the litigant parties have complete freedom to approach the authorities for avoiding any collision of interest when capitalized through any characterized persons.
- The judicial officer may be made as a witness. If any judicial person has been made as a witness to any trial, this surfaces the end of the ability of that person to conduct the trial. Such actions may append breach of ordinary prudence of fair trial and may impeach the interest of justice.
- When the Court or any judicial authority is working in contravention to the principles of natural justice, and if such breach when reported to the authority continues to happen, the aggrieved party would be free to take shelter for preferring transfer of the case.
- Any mutual disturbance or unethical relationship between the lawyer and the judicial officer may also prefer an application of transfer of the case from one Court to another.
Palwinders’ case does not fall in aforesaid options. Therefore, it is unlikely that his application will be allowed.The case of transfer will come up for hearing on June 15 before Session’s Court on June 15.
For case specific advice, get in touch with best/top/expert Criminal lawyers in District Court Mohali, Chandigarh Panchkula Kharar Derabassi Zirakpur.
This post is written by Gourav Kathuria
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