September 30, 2022

Bhim Singh v. State of J.K.- An Analysis

The Case of ‘Bhim Singh MLA v. State of J.K’[1] is a landmark and important case. It is referred in ‘Law of torts’ regarding the vicarious liability of the state for the wrongful acts done by its employees, and ‘criminal law’ regarding arrest and ‘constitutional law’ regarding the fundamental rights of the person.

Facts of the Case

  • Shri Bhim Singh, a Member of the Legislative Assembly of Jammu & Kashmir, prevented from attending the session of the Legislative Assembly of Jammu & Kashmir, which was to meet on 11th September, 1985.
  • On August 17, 1985, the opening day of the Budget Session of the Legislative Assembly, Shri Bhim Singh was suspended from the Assembly. He questioned the suspension in the High Court of Jammu & Kashmir. The order of suspension was stayed by the High Court on 9th September, 1985.
  • On the intervening night of 9th-10th September, 1985, he was proceeding from Jammu to Srinagar. En route, at about 3.00 AM (on 10th), he was arrested at a place called Qazi Kund about 70 kms. from Srinagar. He was taken away by the police.
  • As it was not known where he had been taken away and as the efforts to trace him proved futile, his wife Smt. Jayamala, acting on his behalf, filed the present application for the issue of a writ to direct the respondents to produce Shri Bhim Singh before the court, to declare his detention illegal and to set him at liberty.
  • On September 16,1985, Shri Bhim Singh was released on bail by the learned Additional Sessions Judge of Jammu before whom he was produced.
  • He categorically asserted that he was kept in police lock up from 10th to 14th and that he was produced before a Magistrate for the first time only on the 14th.
  • An FIR under Section 153-A of the Ranbir Penal Code was registered against Shri Bhim Singh on September 9, 1985 at Police Station Pacca Danga, Jammu on the allegation that he had delivered an inflammatory speech at a public meeting held near Parade Ground, Jammu at 7.00 P.M. on September 8, 1985.
  • At about 3,00 AM, according to Shri Bhim Singh was arrested at Qazi 1 Kund by the Officer-in-charge of Police Station Qazi Kund and brought to the District Headquarters where it appears Shri Bhim Singh was provided with facilities for rest, wash, breakfast, etc.

Observations of the court

The court considered the all facts, arguments, evidence and circumstances which were in this case. The court was concerned with the detention of Shri Bhim Singh from 3.00AM on 10th September, 1985 until he was produced before the Sub Judge on 14th September, 1985.

After looked upon the whole case, the court noticed the following-

  • The court noticed that the two remand orders said to have been made by the Executive Magistrate First Class and Sub Judge on 11th and 13th September, 1985 respectively do not contain any statement that Shri Bhim Singh was produced either before the Executive Magistrate First Class or before the Sub Judge. The applications for remand also do not contain any statement that Shri Bhim Singh was being produced before the Magistrate or the Sub Judge.
  • The Medical Certificate referred to in the application dated 13th September, 1985 has also not been produced. In addition, no affidavit of the officer in charge of the Police Station Pacca Danga has been filed before supreme court. Nor has the affidavit of the officer, who arrested Shri Bhim Singh been filed.
  • There was ample time for the respondents to file the affidavits of the two police officers after supreme court issued notice to the respondents.
  • When the complaint was of illegal arrest and detention, the least one would expect the respondents to do is to file the affidavits of the officer who arrested the petitioner and the officer who produced him before the Magistrate for the purpose of obtaining orders of remand. Instead of filing their affdavits, several inconsequential affidavits were filed perhaps only to confuse the issue. Shri Khajuria, the Inspector General of police filed a lengthy affidavit containing statements of fact, most of which he could not be personally aware.
  • The court convinced that the failure to file the affidavits of the officers, who arrested Shri Bhim Singh and the Sub-Inspector, incharge of Pacca Danga Police Station was deliberate. They were to be kept back until there was dire necessity.
  • The court said,

“We do not have the slightest hesitation in holding that Shri Bhim Singh was not produced before the Executive Magistrate First Class on 11th and was not produced before the Sub Judge on 13th. Orders of remand were obtained from the Executive Magistrate and the Sub Judge on the application of the police officers without the production of Shri Bhim Singh before them.

The manner in which the orders were obtained, i.e., at the residence of the Magistrate and the Sub Judge after office hours, indicates the surreptitious nature of the conduct of the police. The Executive Magistrate and the Sub-judge do not at all seen to have been concerned that the person whom they were remanding to custody had not been produced before them. They acted in a very casual way and we consider it a great pity that they acted without any sense of responsibility or genuine concern for the liberty of the subject.

The police officers, of course, acted deliberately and mala fide and the Magistrate and the Sub Judge aided them either by colluding with them or by their casual attitude. We do not have any doubt that Shri Bhim Singh was not produced either before the Magistrate on 11th or before the Sub Judge on 13th, though he has arrested in the early hours of the morning of 10th. There certainly was a gross violation of Shri Bhim Singh’s constitutional rights under Articles 21 and 22(2).”

The court stricted on the authorities who did gross carelessness on the liberty of the person and said,

“Shri Mir, the Superintendent of Police, Anantnag stated that on 9th September, 1985 at 11.30 P.M. he was informed by the Police Control Room, Srinagar that Shri Bhim Singh was required to be apprehended as he was wanted in a case registered Under Section 153-A of the Ranbir Penal Code. Nobody cared to explain why it was thought that Bhim Singh would pass through Qazi Kund in Anantnag District on the night of September 9-10.

To our minds, it appears as if it was expected that Bhim Singh would proceed from Jammu to Srinagar on the intervening night of 9-10 September, 1985 as there was a meeting of the Assembly on 11th September and the police were alerted to arrest him when sighted en route to Srinagar and take him back to prevent him from proceeding to Srinagar to attend the the session of the Legislative Assembly.

We can only say that the Police Officers acted in a most high-handed way. We do not wish to use stronger words to condemn the authoritarian acts of the police. If the personal liberty of a Member of the Legislative Assembly is to be played with in this fashion, one can only wonder what may happen to lesser mortals!”

Further, the court emphasized that,  

“Police Officers who are the custodians of law and order should have the greatest respect for the personal liberty of citizens and should not flout the laws by stooping to such bizarre acts of lawlessness. Custodians of law and order should not become depredators of civil liberties. Their duty is to protect and not to abduct.

However, the two police officers, the one who arrested him and the one who obtained the orders of remand, are but minions, in the lower rungs of the ladder. We do not have the slightest doubt that the responsibility lies elsewhere and with the higher echelons of the Government of Jammu and Kashmir but it is not possible to say precisely where and with whom, on the material now before us.”

Decision of the court

While concluding the judgment, the court held that,

“We have no doubt that the constitutional rights of Shri Bhim Singh were violated with impunity. Since he is now not in detention, there is no need to make any order to set him at liberty, but suitably and adequately compensated, he must be. That we have the right to award monetary compensation by way of exemplary costs otherwise is now established by the decisions of this court in Rudul Sah v. State of Bihar and Anr. 1983 (3) SCR 508 and Sebestian M. Hongray v. Union of India 1984 AIR SC 1026.

When a person comes to us with the complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free.

In appropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation. We consider this an appropriate case. We direct the first respondent, the State of Jammu and Kashmir to pay to Shri Bhim Singh a sum of Rs. 50,000/- within two months from today.”

Reference

Bhim Singh, Mla vs State of J & K And Ors.: AIR 1986 SC 494, 1986 CriLJ 192


[1] AIR 1986 SC 494