# Brij Lal Verma v. S.P., C.B.I., STU-XV, Chandigarh and others

- **Citation:** (2001) 2 ILRA 145
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1998-05-27
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brij-lal-verma-v-s-p-c-b-i-stu-xv-chandigarh-and-others-39247
- **Pages:** 4

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2001

145
Family Court; and further that no appeal
lies against such judgment or order which
is interlocutory. It cannot be said that the
Legislature has created an appellate form
in 1984 against the orders passed under
Section 24 of the Hindu Marriage Act
nullifying Section 28 of that Act contrary
to the object of enactment of the Act as
stated in the Bill.

8. Thus, we uphold the objection of
the Stamp Reporter that this appeal is not
maintainable under Section 19 (1) of the
Family Courts Act, 1984 and dismiss it as
not maintainable.

9. It is needless to clarify that it will
be open for a litigant like the Appellant to
knock the doors of this Court under
Article 226 and /or Article 227 of the
Constitution of India provided a suitable
case for interference is made out against
an order passed under Section 24 of the
Hidnu Marriage Act.

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By the Court

1. Heard learned counsel for the
parties.

2. The petitioner is presently posted
as S.O. police station Pachokhara district
Firozabad. The incident in question
occurred on 12/13.10.1993 when a Sikh
person Harjeet Singh was killed in a
police encounter by a police party and an
F.I.R. was lodged on 13.10.1993 being
case crime no. 327 of 1993 at police
station puwayan, district Shahjahanpur. It
is alleged in paragraph 5 of the writ
petition that after investigation the police
submitted a final report before the
Magistrate concerned and the same was
accepted on 29.5.1995 vide Annexure 2 to
the writ petition.

3. It appears that a writ petition was
filed in the Punjab and Haryana High
Court by the father of deceased Harjeet
Singh asserting that his son had been
picked up by the Punjab Police which
handed him over to the U.P. Police and
thereafter he was killed in Shahjahanpur
in U.P. in a false encounter. True copy of
the judgment of the Punjab High Court
dated 27.5.1998 is Annexure 3 to the writ
petition. The Punjab High Court directed
an investigation by the C.B.I. to enquire
and investigate the circumstances leading
to the killing of Harjeet Singh and to
submit a report before the High Court
2All] Brij Lal Verma V. S.P., C.B.I., STU-XV, Chandigarh and others

146
within a period of six months. The States
of Punjab and Uttar Pradesh were also
directed to render all necessary assistance
in
the
investigation.
Thereafter
on
1.8.1998 an F.I.R. was lodged, copy of
which is Annexure 4 to the writ petition.
The petitioner's name was not in the
F.I.R. but he was asked to appear before
the C.B.I. Admittedly the petitioner was
one of the police party which is said to
have killed Harjeet Singh in Shahjahanpur
vide paragraph 12 of the petition. The
petitioner was asked to appear before the
C.B.I. for a lie detection test but he
refused alleging that his statement under
Section 161 Cr.P.C. had already been
recorded. True copy of the letter of the
petitioner dated 1.3.2000 is Annexure 8 to
the writ petition.

4. The Special Judicial Magistrate,
C.B.I., Patiyala issued a notice dated
14.5.2000 to the petitioner to appear on
25.5.2000. True copy of the notice is
Annexure 10 to the petition. However, the
petitioner did not appear in that Court and
hence bailable warrant was issued on
24.8.2000 against him directing the C.B.I.
authorities to arrest him and produce him
on 14.9.2000. The petitioner appeared
before the Court of the Spl. Judicial
Magistrage, Patiyala on 14.9.2000 and the
case was adjourned to 20.9.2000 vide
Annexure 11 to the writ petition. On
20.9.2000 an application was submitted
by the C.B.I. for directing the petitioner to
give his handwriting/signature. However,
the same was dismissed vide Annexure
12. On 29.1.2001 the S.P., C.B.I. wrote a
letter to the S.P. Firozabad requesting him
to direct the petitioner to attend the C.B.I.
office at Chandigarh on 8.2.2001 for the
purpose of investigation vide Annexure
13. However, the petitioner did not appear
alleging that he was afraid of being killed
by encounter by terrorists. On 19.3.2001 a
wireless message was received in the
office of the S.P., Firozabad to instruct the
petitioner to appear in the C.B.I. office on
any working day in the last week of
March 2001 vide Annexure 15 to the
petition. Since the petitioner did not
appear a warrant of arrest has been issued
by Spl. Judicial Magistrate, C.B.I.,
Patiyala with a direction to produce the
petitioner on 30.3.2001 as he stands
charged for offences under Section 120B
read with Section 364, and 302 I.P.C.
True copy of the warrant of arrest is
Annexure 16 to the writ petition.

5. It is alleged in paragraph 25 of the
petition that the entire proceeding drawn
by the C.B.I. at Chandigrah is without
jurisdiction as no part of the offence has
been committed within the State of
Punjab and Harayana as admittedly the
alleged encounter took place in district
Shahjahanpur in U.P. It is further alleged
that the Punjab High Court had no
jurisdiction to entertain the writ no. 1118
of 1996 as no part of the cause of action
arose in the State of Punjab.

6. We are not in agreement with the
submission of the learned counsel for the
petitioner. The allegations regarding the
killing of Harjeet Singh are that he was
dragged form his house in his native
village in Punjab and brought to district
Shahjahanpur in U.P. where he was killed
in the alleged encounter. Since the
allegations are that Harjeet Singh was
caught in Punjab and forcibly brought to
Shahjahanpur where he was killed in our
opinion part of the cause of offence
certainly arose in Pubjab State. Had
Harjeet Singh not been caught in Punjab
he could obviously not have been brought
to Shahjahanpur and killed there.
INDIAN LAW REPORTS ALLAHABAD SERIES [2001

147
7. Learned counsel for the petitioner
relied on the decision of the Supreme
court in Navinchandra N. Majithia vs.
State of Maharashtra 2000 (7) S C C 640.
In our opinion this decision does not help
the petitioner. This decision itself says
that the High Court will have jurisdiction
if any part of the cause of action arises
within
the
territorial
limits
of
its
jurisdiction. Since admittedly Harjeet
Singh was caught and forcibly brought
away from Punjab, in our opinion part of
the cause of action does arise within the
territorial jurisdiction of the Punjab High
Court. Moreover this decision of the
Punjab High court does not seem to have
been challenged in the Supreme court and
hence it is not open to the petitioner to
challenge that decision in a collateral
proceeding. In our opinion, the Court of
Special
Judicial
Magistrate,
C.B.I.,
Patiyala certainly has jurisdiction in the
matter as part of the cause of action
admittedly arose in Punjab.

8. Hence we are not inclined to
exercise our discretion under Article 226
in this case. Moreover writ jurisdiction is
discretionary jurisdiction and this Court is
not inclined to exercise its jurisdiction in
such matter where there is allegation of
gross violation of Article 21 of the
Constitution.

9. We are pained to say that the
police in this country is often behaving in
an illegal manner. While not commenting
on the facts of the present case we would
certainly like to say that often innocent
persons are murdered by the police in the
name of encounter. These so called
encounters are nothing but murder by the
police, and the police have no right to
commit murder. A large number of cases
have been coming to this Court where the
allegations are that the police persons are
indulged in committing dacoity, theft,
forcible extraction of money (vasuli),
rape, black-mail and even murder in the
name of false encounters.

10. If crimes are committed by
ordinary
people
no
doubt
ordinary
punishment should be given but if the
offence is committed by the police
persons much harsher punishment should
be given to them, because they are doing
an act contrary to their duties.

11. The police is supposed to protect
the people and uphold the law, but if they
themselves become criminals then that is
the end of civilized society. As the Bible
says "If the salt has lost its flavour,
wherewith shall it be salted", or as the
ancient Romans used to say "who will
guard the Praetorian guards." No doubt
there are some good policemen in the
police force but they appear to be in the
minority.

12. We are of the view that in cases
where false encounter is found proved
against police persons in a trail they must
be given death sentence treating it as
rarest of the rare cases.

13. We also warn all police
personnel in the country that they will not
be excused for committing murder in the
name of encounter on the pretext that they
were carrying out orders of superior
officers or politicians, however high. In
the Nuremberg Trails the Nazi war
criminals took the defence or 'orders are
order', nevertheless they were hanged. In
our opinion if a policemen is given an
illegal order by any superior to do an
encounter it is his duty to refuse to carry
out such illegal order, otherwise he will
2All] Dvijendra Singh and others V. State of U.P. and others

148
be charged for murder, and if found guilty
sentenced to death. The 'encounter'
philosophy is a criminal philosophy, and
all policemen must know this. Trigger
happy policemen who think they can kill
innocent
people
in
the
name
of
'encounter' and get away with it should
know that the gallows await them.

There is no force in this petition. It is
dismissed.

14. Let a copy of this order be sent
to the Director General of Police, U.P.
forthwith and the Director General will
send copy of this judgment to all I.G.,
D.I.G., S.S.P. and S.P.s in the State with
the stern direction to comply with this
judgment.

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By the Court

1. Heard learned counsel for the
petitioners and learned standing counsel.

2. Petitioners have prayed that a
mandamus
should
be
issued
for
appointing them as Assistant Prosecuting
Officers. It appears that an advertisement
was issued on 23.12.1998 for the said post
vide
Annexure
-1.
The
petitioners
appeared in the said examination and they
passed in the written test and then they
appeared in the interview. The final result
was
prepared
vide
Annexure
-
3
containing the names of 99 persons, who
were selected against 99 vacancies.

3. It has been submitted that five of
these 99 persons joined their posts but
they resigned within one year of the life
of the list and hence five persons lower
down in the select list should have been
offered appointments on those posts.
Learned counsel for the petitioners relied