A Public Interest Litigation filed by NGO Lawyers For Human Rights International seeking stay on execution of Balwant Singh Rajoana was dismissed by Punjab and Haryana High Court on the ground that the petitioner had no ‘locas standi’ to file the petition. The division bench said Rajoana had already refused to appear before the high court in ‘murder reference’ and also declined assistance of a counsel to defend himself on government expenses…
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Writ Petition No.______/2012
(Public Interest Litigation)
Lawyers for Human Rights International (Regd.)
Office at Kothi No.516, Sector 11-B, Chandigarh through Tejinder Singh Sudan Advocate, President Chandigarh Unit.
. . . Petitioner
- State of Punjab through Home Secretary,
Civil Secretariat, Chandigarh.
- Superintendent, Central Jail, Patiala.
- U.T. Administration through its Home Secretary,
U.T. Secretariat, Sector-9, Chandigarh.
3. C.B.I. New Delhi.
. . . Respondents
Civil Writ Petition under Articles 226/227 of the Constitution of India for issuance of a writ of Mandamus or any other writ order or direction, with the prayer this Hon’ble Court should pass orders staying the operation of the order passed by the Additional Sessions Judge, Chandigarh dated 5.3.2012 (Annexure P-2) vide which it has been ordered that Balwant Singh an accused in the murder case of Ex. Chief Minister of Punjab late S.Beant Singh and 17 others be executed on 31.3.2012 at 9.00 A.M, since the judgment vide which the death sentence of Balwant Singh has been confirmed is under appeal before the Hon’ble Supreme court of India and the Special Leave Petition filed by the C.B.I. against the conviction of Jagtar Singh Hawara has been admitted by the Hon’ble Supreme Court of India on 5.12.2011 and so the decision in this case has not yet reached it’s finality.
. . .
- That the petitioner organization is comprised of Lawyers who are practicing in this Hon’ble Court as well as the Districts Courts of Punjab, Haryana and Chandigarh. Though the organization has membership throughout the world, however the units of Punjab, Haryana and Chandigarh are actively involved in upholding of Human Rights and rule of law through Public Interest Litigations and by providing free legal aid to the persons who are unable to afford litigation. The organization also trains and disseminates Human Rights knowledge through seminars and workshops. The organization does not accept any grants nationally or inter-nationally and the members of the organization make expenditure from their own earnings. The petitioner organization is also part of the International Campaign against Death Penalty and ratification of the treaty for formation of International Criminal Court at Hague. So the petitioner organization is competent to invoke the extra ordinary jurisdiction of this Hon’ble Court by way of the Public Interest Litigation under Articles 226/227 of Constitution of India in the present matter of public importance.
- That on 31.8.1995 a bomb blast took place in the Punjab and Haryana Civil Secretariat, in which 17 persons got killed including the then Chief Minister of Punjab S.Beant Singh. As per the prosecution story Dilawar Singh who acted as a human bomb, triggered the blast which led to the death of 17 peoples.
- That an FIR was registered at Police Station Sector-3, Chandigarh and the investigation of the case was handed over to CBI, which registered it’s own FIR No.CBI RC 9/S/95/SIU-V/CBI/SIC.II, New Delhi, under Sections 120-B, 302, 207 IPC and Section ¾ of Explosive Substance Act dated 01.09.1995 and after the challan was filed, a Special Judge of Chandigarh tried Jagtar Singh Tara, Navjot Singh, Nasib Singh, Shamsher Singh, Balwant Singh and Jagtar Singh Hawara, whereas some other accused who were residing abroad were declared as proclaimed offenders.
- That the Special Judge CBI decided the case on 31.7.2007, vide which Jagtar Singh Hawara and Balwant Singh were sentenced to death and Nasib Singh was sentenced to 10 years Rigorous imprisonment under the Explosive Substance Act 1984 and Shamsher Singh was sentenced to life imprisonment, whereas Navjot Singh was acquitted by the learned trial court.
- That the learned trial court sent a murder reference to this Hon’ble Court i.e. Murder Reference No. 6 of 2007, which was heard along with Criminal Appeal No.731-DB/2007 which was an appeal by Jagtar Singh Hawara and others against their conviction, however Balwant Singh refused to file any appeal.
- That vide judgment dated 12.10.2010 an Hon’ble Division Bench of this Hon’ble Court after calling Balwant Singh accused in this Hon’ble Court and offering him legal assistance, on his refusal to defend himself through his own counsel or a counsel by the State, the Hon’ble High Court confirmed the death sentence of Balwant Singh, however converted the death sentence of Jagtar Singh Hawara to life imprisonment.
- That the C.B.I. has challenged the judgment of this Hon’ble Court dated 12.10.2010 in Murder Reference No.6 of 2007 and Criminal Appeal No.731-DB/2007 and the same was listed before Hon’ble Supreme Court of India on 5.12.2011 in which the Hon’ble Supreme Court has granted leave. The said order is being appended herewith as Annexure P-1.
- That in the meantime since Balwant Singh, who had made a confession of his crime before the learned Trial Court and had refused to file an appeal in the Hon’ble High Court and had also refused to accept a counsel at the state expense, the court of Additional Sessions Judge Chandigarh vide its order dated 5.3.2012 fixed the date of execution of death sentence of Balwant Singh at 9.00 AM on 31.3.2012. The said order is being appended herewith as Annexure P-2.
- That in the SLP filed by the CBI against the judgment of this Hon’ble Court vide which the death sentence of Balwant Singh has been confirmed and death sentence of Jagtar Singh Hawara has been reduced to life imprisonment is pending decision before the Hon’ble Supreme Court and till now Jagtar Singh Hawara has not been served of the notice, so the judgment of this Hon’ble Court cannot be treated to be final.
- That on various occasions the Hon’ble Supreme Court of India has given benefit of a judgment to even the accused who were not an appellant before the Hon’ble Supreme Court of India. The Hon’ble Supreme Court of India while exercising its powers under Article 142 of Constitution of India even acquitted the accused who were not before the Hon’ble Supreme Court of India. Few of the judgments which are essential to be quoted given as below:-
In Bachan Singh versus State of Bihar, AIR 2009 Supreme Court(Supply) page 904, the Hon’ble Supreme Court extended the benefit of the justice even to the non appealing the accused and in the Judgment of Hon’ble Bench the earlier judgments of the Hon’ble Supreme Court has referred which are titled Suresh Chaudhary etc versus State of Bihar as reported in AIR 2003 SC page 1981, Vejoy Singh and another Versus State of Bihar, AIR 2002 SC 1949, Anil Rai Versus State of Bihar AIR 2001 SC 3173, Dandu Laxmi Reddy Vs. State of A.P. AIR 1999 SC page 3255.
11. That in the light of the pendency of the appeal filed by the C.B.I., in which the judgment of this Hon’ble Court in murder reference and criminal appeal are challenged, it would be travesty of justice, in case Balwant Singh is allowed to be hang, even before the Hon’ble Supreme Court of India has finally decided the matter.
12. That this Hon’ble Court may kindly visualise a situation, where the Supreme Court acquits Jagtar Singh Hawara and Balwant Singh in the matter, whereas Balwant Singh has already lost his life due to execution of his death sentence as a consequence of orders passed by learned Additional Sessions Judge, Chandigarh dated 5.3.2012 i.e. Annexure P-2. It would be great in justice and the judicial system would not be able to justify the hurried action of it’s in executing Balwant Singh, as by that time the life of Balwant Singh had already been snuffed and irreparable loss could have been caused, which cannot be reversed.
13. That the petitioner body being a body comprising only of lawyers and beside being dedicated to the causes of human right, are officers of court and they are duty bound to ensure that the stream of justice remains unpolluted and the majesty of law does not loose its sheen. The hurried action of execution the death sentence of Balwant Singh would definitely be not in the interest of justice and the issue being of public importance and also involving the dignity of the judicial system, the petitioner organization is craving indulgence of this Hon’ble Court.
14. Thatt the main law points are involved in this writ petition are as under:-
- As to whether the execution of the death sentence of one of the accused during the pendency of the judgment of the conviction, attaining finality of the Hon’ble Supreme Court could leave to in justice.
- As to whether the Hon’ble Supreme Court can reverse the decision of the accused Balwant Singh, even though he has not filed an appeal in this Hon’ble Court or the Hon’ble Supreme Court of India.
- As to whether the hurried decision of hanging Balwant Singh would be a violation of Human Rights and fundamental rights as enshrined under Article 21 of Constitution of India.
- As to whether the petitioner organization can move this Hon’ble Court in public interest for ensuring stopping of imminent danger to occurrence of an illegal action which is irreversible.
15. That there is no other remedy either by appeal or revision is available with the petitioner except to approach this Hon’ble Court by way of filing the present writ petition.
16. That no such or similar petition has earlier been filed by the petitioner in this Hon’ble Court or in the Hon’ble Supreme Court of India.
17. That the documents attached with the writ petition are true copies of the originals as required under Rule 22 of the Writ Jurisdiction Rules.
In the light of the above given circumstances of the case, it is, therefore, respectfully prayed that this Hon’ble Court may be pleased to issue a writ of Mandamus or any other writ order or directions:-
- With the prayer that this Hon’ble Court should pass orders staying the operation of the order passed by the Additional Sessions Judge, Chandigarh dated 5.3.2012 (Annexure P-2) vide which it has been ordered that Balwant Singh an accused in the murder case of Ex. Chief Minister of Punjab late S.Beant Singh and 17 others be executed on 31.3.2012 at 9.00 A.M, since the judgment vide which the death sentence of Balwant Singh has been confirmed is under appeal before the Hon’ble Supreme court of India and the Special Leave Petition filed by the C.B.I. against the conviction of Jagtar Singh Hawara has been admitted by the Hon’ble Supreme Court of India on 5.12.2011 and so the decision in this case has not yet reached it’s finality.
- with a further prayer that this Hon’ble Court may kindly pass any other appropriate writ, order or direction which deem fit and proper in the facts and circumstances of the case;
- advance notice of the writ petition to the respondents may kindly be dispensed with;
- filling of the certified copy of the Annexure P-1 to P-2 may be dispensed with,
- the writ petition be allowed as prayed for.
(P E T I T I O N E R)
T H R O U G H
(RUBINA N.SINGH) (HARPREET KAUR) (DILPREET SINGH)
P/71/1988 P/769/2008 P/1822/2011
CHANDIGARH: A D V O C A T E S
DATED:20.03.2012 COUNSEL FOR THE PETITIONER
Civil Writ Petition No.______/2012
Lawyers for Human Rights International(Regd.) … Petitioner
State of Punjab etc . . . Respondents
Affidavit of Tejinder Singh Sudan Advocate, President Chandigarh Unit, Lawyers for Human Rights International (Regd.) Office at Kothi No.516, Sector 11-B, Chandigarh.
I, the above named deponent do hereby solemnly affirm and declare as under:-
- That the contents of paras 1 to 13, and 15 to 17 of the writ petition are true and correct to my knowledge and that of para 15 is believed to be true as per advice of the counsel. No part of it is false and nothing has been kept concealed therein.
- That the petitioner has no direct or indirect personal motive or interest involved in this present case and it is for the Public Interest.
Verified that the contents of above affidavit are true and correct to my knowledge. No part of it is false and nothing has been concealed therein.
ITEM NO.18 COURT NO.13 SECTION IIB
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl)… 2011
(From the judgement and order dated 12/10/2010 in MR No.6/2007,CRLA No.731/2007 of The HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH)
STATE TH: C.B.I. Petitioner(s)
JAGTAR SINGH HAWARA Respondent(s)
WITH CRLMP.NO(s). 22969/2011
(With appln(s) for c/delay in filing SLP and office report)
Date: 05/12/2011 This Petition was called on for hearing today.
HON’BLE DR. JUSTICE B.S. CHAUHAN
HON’BLE MR. JUSTICE T.S. THAKUR
For Petitioner(s) Mr. H.P. Rawal,ASG
Mr. Rajiv Nanda,Adv.
Mr. S. Dave,Adv.
Mr. Arvind Kumar Sharma,Adv.
UPON hearing counsel the Court made the following
O R D E R
(O.P. Sharma) ( M.S. Negi )
Court Master Court Master
In the Court of Shalini Singh Nagpal, Additional Sessions Judge, Chandigarh
Central Jail, Patiala.
Whereas Balwant Singh son of Malkikat Singh prisoner in case No.2-A of the Calendar for 1995(RBT) titled CBI Vs.Gurmeet Singh etc arising out of FIR No.CBI RC 9/S/95/SIU V/CBI/SIC.II, New Delhi, under Sections 120-B,302,207 IPC and Section ¾ of Explosive Substance Act dated 01.09.1995 at the session held before Shri Ravi Kumar Sondhi, Additional Sessions Judge, Chandigarh on the 31.07.2007 has been by a warrant of the court, dated 31.07.2007 committed to your custody under sentence of death; and whereas the order dated 12.10.2010 of the Hon’ble High Court at Chandigarh confirming the said sentence has been received by this Court.
This is to authorize and require you to carry the said sentence into execution by causing the said Balwant Singh to be hanged by neck until he be dead, at 9.00 a.m. on 31.03.2012 and to return this to the Court with an endorsement certifying that the sentence has been executed.
Dated, this 5th day of March 2012.
Additional Sessions Judge, Chandigarh
Noted in the presence of Deputy Superintendent. LTI
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
C.W.P. No.5226 of 2012
Date of decision:22.3.2012
Lawyers for Human Rights International (Regd.) …Petitioners
State of Punjab etc. …Respondents
CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA
HON’BLE MR. JUSTICE A.N.JINDAL
- Whether Reporters of local papers may be allowed to see the judgment?
- Whether to be referred to the Reporters or not?
- Whether the judgment should be reported in the Digest?
Present: Mr. Navkiran Singh, Advocate,
for the petitioner.
HEMANT GUPTA, J. (ORAL)
The present writ petition has been filed in public interest against an order passed by the learned Additional Sessions Judge, Chandigarh on 05.03.2012, whereby the death sentence awarded to Balwant Singh son of Malkiat Singh, an accused in a murder case of Shri Beant Singh, the then Chief Minister, Punjab, is ordered to be executed on 31.03.2012 at 9.00 am.
It is submitted that the judgment vide which the death sentence has been confirmed is under appeal before the Hon’ble Supreme Court of India at the instance of the Central Bureau of Investigation. The special leave has been granted in an appeal against the conviction of Jagtar Singh Hawara. So the decision has not attained finality, therefore, the death sentence be not executed.
A perusal of the writ petition shows that the learned Special Judge, CBI, decided the case on 31.07.2007 vide which Jagtar Singh Hawara and Balwant Singh were sentenced to death, whereas Shamsher Singh and Nasib Singh, were sentenced to undergo life imprisonment and 10 years rigorous imprisonment respectively.
Murder Reference No.6 of 2007 for confirmation of death sentences was heard along with Criminal Appeal No.731-DB of 2007 filed by Jagtar Singh Hawara & others. Vide judgment dated 12.10.2010, a Division Bench of this Court confirmed the death sentence of Balwant Singh, however, the death sentence of Jagtar Singh Hawara was converted to life imprisonment. It is also mentioned that Balwant Singh refused to file any appeal and also refused to defend himself through his own counsel or a counsel by the State.
Mr. Navkiran Singh, during the course of arguments, has pointed out that apart from the appeal filed by the Central Bureau of Investigation against the conversion of death sentence imposed upon Jagtar Singh Hawara, an appeal has also been filed by Lakhwinder Singh @ Lakha before the Hon’ble Supreme Court of India.
The argument raised by the learned counsel for the petitioner is that till such time, the matter attains finality with the orders of the Hon’ble
Supreme Court, the execution of death sentence in respect of Balwant Singh should be stayed, as there is a possibility of setting aside the order passed by this Court confirming the death sentence.
We do not find any merit in the present petition. The Hon’ble Supreme Court in Simranjit Singh Mann Vs. Union of India and others (1992) 4 SCC 653, dismissed the writ petition filed in public interest by a President of a political party challenging the conviction and sentence awarded to the convicts. The question posed was; whether a third party, who is a total stranger to the prosecution culminating in the conviction of the accused have any ‘locus standi’ to challenge the conviction and the sentence awarded to the convicts in a petition under Article 32 of the Constitution. While considering such question, the Hon’ble Court observed as under:
“5. We no proceed to deal with the present petition. As stated earlier this is a petition under Article 32 of the Constitution. That article which finds a place in Part III of the Constitution entitled ‘Fundamental Rights’ provides that the right to move the Supreme Court for the enforcement of the rights conferred in that part is guaranteed. It empowers the Supreme Court to issue directions or orders or writs for the enforcement of any of the fundamental rights. The petitioner does not seek to enforce any of his fundamental rights nor does he complaint that any of his fundamental rights is violated. He seeks to enforce the fundamental rights of others, namely, the two condemned convicts who themselves do not complain of their violation.
xxx xxx xxx
7. Ordinarily, the aggrieved party which is affected by any order has the right to seek redress by questioning the legality, validity or correctness of the order, unless such party is a minor, an insane person or is suffering from any other disability which the law recognizes as sufficient to permit another person, e.g. next friend, to move the Court on his behalf. If a guardian or a next friend initiates proceedings for and on behalf of such a disabled aggrieved party, it is in effect proceedings initiated by the party aggrieved and not by a total stranger who has no direct personal stake in the outcome thereof. In the present case, no fundamental right of the petitioner before us is violated; if at all the case sought to be made out is that the fundamental rights of the two convicts have been violated. The two convicts could, if so minded, have raised the contention in the earlier proceedings but a third party, a total stranger to the trial commenced against the two convicts, cannot be permitted to question the correctness of the conviction recorded against them. If that were permitted any and every person could challenge convictions recorded day in and day out by courts even if the persons convicted do not desire to do so and are inclined to acquiesce in the decision. …”
Similar view was reiterated in Karamjeet Singh Vs. Union of India (1992) 4 SCC 666 and later in Ashok Kumar Pandey Vs. State of West Bengal (2004) 3 SCC 349, wherein again a public interest litigation challenging the death sentence imposed upon one Dhananjay Chatterjee @ Dhana was dismissed. It was observed as under:
“30. The petitioner there claimed to be a friend of the convicts, and it was held that he had no locus standi to move the court under Article 32 of the Constitution. Unless the aggrieved party is a minor or insane or one who is suffering from any other disability which the law recognizes as sufficient to permit another person e.g. next friend, to move the court on his behalf, for example, see Sections 320(4)(a), 330(2) read with Sections 335(1)(b) and 339 of the Code of Criminal Procedure, 1973 (in short ‘the Code’). Ordinarily, the aggrieved party has the right to seek redress. Admittedly, it was not the case of the petitioner that the two convicts are minors or insane persons but had argued that since they were suffering from an acute obsession, such obsession amounts to a legal disability which permits the next friend to initiate proceedings under Article 32 of the Constitution.
31. A mere obsession based on religious belief or any other personal philosophy cannot be regarded as a legal disability of the type recognized by the Code or any other law which would permit initiation of proceedings by a third party, be he a friend. It must be remembered that the repercussions of permitting such a third party to challenge the findings of the court can be serious e.g. in the instant case itself the co-accused who have been acquitted by the Designated Court and whose acquittal has been confirmed by this Court would run the risk of a fresh trial and a possible conviction.”
The prayer sought in the present petition by way of public interest, has the effect of temporary cessation of an order passed by the Coordinate Bench of this Court particularly when he did not put in appearance in the Murder Reference and has also refused the assistance by a counsel at the State expenses. He has not even filed an appeal before the Hon’ble Supreme Court. This Court has no such jurisdiction to stay an order passed by the Co-ordinate Bench by way of an interim order in a public interest litigation. Consequently, we do not find any merit in the present writ petition. The same is accordingly dismissed.
March 22, 2012 (A.N. JINDAL)