Mohinder Kaur vs State of Punjab

V.K. Bali, J.

Mohinder Kaur wife of Dharam Singh has approached this Court through present petition filed by her under Article 226 of the Constitution of India in rather unusual circumstances.

The narration of facts as briefly as may be possible reveal that husband of the petitioner Dharam Singh was involved in number of cases by the Punjab Police. The details of the cases against the petitioner are given below :

Sr. No. FIR No. Under Sections Police Station.

215/90 307/34 IPC 25/54/59 Arms Act & 3/4/5 TADA Jandiala.

189/90 302/148/149 IPC 25/54/59 Arms Act & 3/4 TADA Jandiala.

164/90 302/148/149 IPC 25/54/59 Arms Act & 3/4/5 TADA Jandiala.

210/90 302/148/149 IPC 25/54/59 Arms Act & 3/4/5 TADA, Jandiala.

183/90 302/452/319 IPC 25/54/59 Arms Act & 5 TADA Jandiala.

206/90 302/148/149 IPC 25/54/59 Arms Act & 3/4 TADA Jandiala.

207/90 302/148/149 IPC 25/54/59 Arms Act 3/4 TADA Jandiala.

186/90 302/148/149 IPC 25/54/59 Arms Act 3/4 TADA Jandiala.

195/90 302/307, 353/34 IPC 25/54/59 Arms Act 3/4/5 TADA Jandiala.

123/90 302/34 IPC 25/54/59 Arms Act 3/4/5 TADA Jandiala.

119/90 302/34 IPC 25/34/59 Arms Act & 5 TADA Mehta.

In fact, he was involved in 17 cases out of which 11 abovementioned cases are still pending whereas in six other cases the husband of the petitioner has been acquitted or discharged. Earlier in point of time the petitioner filed Cr.W.P. No. 149 of 1993 wherein she had pleaded that there is apprehension that her husband would be liquidated by showing a false encounter and the police was in process of obtaining remand against her husband, though he is in judicial custody since 17th November, 1990. The matter came to be disposed of by Harphul Singh Brar, J. on 20th October, 1993. The operative part of the order reads as under :

"After hearing the learned counsel for both the sides and in view of the orders already passed by Chahal and Sandhu, JJ. in which similar prayers were made, a direction is issued to the Superintendent of the Jail that he will not allow the taking out of the petitioner''s husband Dharam Singh alias Dharma under any orders of any Court without the permission of this Court."

The contents of the aforesaid petition and the order passed therein would thus clearly demonstrate that the petitioner did have an apprehension that her husband would be liquidated by showing a false encounter, otherwise there was no question for the petitioner praying the Court that her husband should remain in jail. The husband of the petitioner, as referred to above, has been acquitted or discharged in six cases whereas in other 11 cases, he is already on bail. The apprehension of the petitioner is unabated and he continues to have a strong feeling that her husband would be liquidated. All that is being asked for from this Court is that in view to minimise the possibility of her husband being liquidated, such an order be passed by which his safety is ensured.

No reply has been filed in this case even though number of opportunities were sought for. It is on 28.2.1995 that the last opportunity was given to the State to file reply. Mr. A.K. Walia, learned A.A.G., Punjab without filing a reply wishes to contest the prayer made in the petition by contending that the apprehension of the petitioner is not well founded, inasmuch as if the police did have the intention of this kind as alleged against it, there was an ample opportunity with the police to have accomplished its designs.

This Court in totality of the circumstances of the case does not wish to go into the respective stands of the parties in regard to apprehension as entertained by the petitioner. Arguable points can be raised from both the sides. If the petitioner''s apprehensions are well made out or even have seemliness of truth, it will be traversity of justice not to protect the liberty of her husband which is one of the most sacred fundamental rights enshrined in the Constitution of India. If, however, the apprehensions are illfounded, the relief which the Court intends to give to the petitioner, harms none. Applying the maxim that justice must not only be done but must also seem to have been done as also looking into the background of the facts of this case, it is ordered that if petitioner''s husband is to be tagged up/involved in some FIR, he shall not be arrested for a period of seven days and during this period he would be given advance notice of arrest as also that if the police wishes to take remand in any of the pending cases, it shall obtain prior permission of the Court concerned. The court is conscious of the fact that it is an unusual order but the facts, as referred to above, are also unusual and the equity, fair play and justice demand such an order to be passed. JUDGMENTed accordingly.

Writ petition stands disposed of accordingly.