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

Versus

Civil Secretariat, Chandigarh.

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.

. . .

Respectfully showeth:-

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:-

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:-

(P E T I T I O N E R)

T H R O U G H

(NAVKIRAN SINGH)

P/786/1986

(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

Versus

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:-

Chandigarh

Dated:20.03.2012                                                                                                                                                           (DEPONENT)

VERIFICATION:-

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.

Chandigarh:

Dated:20.03.2012                                                                                                                                                            (DEPONENT)

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

CRLMP.NO(s). 22969

(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)

VERSUS

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.

CORAM :

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.

For Respondent(s)

UPON hearing counsel the Court made the following

O R D E R

Delay condoned.

Leave granted.

(O.P. Sharma)                                                  ( M.S. Negi )

Court Master                                                  Court Master

True Copy

Advocate

Annexure P-2

In the Court of Shalini Singh Nagpal, Additional Sessions Judge, Chandigarh

To

The Superintendent,

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 5^th day of March 2012.

Sd/-

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

Vs.

State of Punjab etc.                                           …Respondents

CORAM:   HON’BLE MR. JUSTICE HEMANT GUPTA

HON’BLE MR. JUSTICE A.N.JINDAL

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.

(HEMANT GUPTA)

JUDGE

March 22, 2012                                                   (A.N. JINDAL)

JUDGE