Today is the 67th birth anniversary of Dal Khalsa co-founder and revolutionary poet Gajinder Singh, who now lives in exile as a stateless citizen.  The author Jagmohan Singh examines the possibilities of his return to homeland Punjab with reference to a detailed analysis of the August 2018 judgement acquitting Satnam Singh Paonta Sahib and Tejinder Pal Singh.

How do I wish “happy birthday” to Gajinder Singh -the first Sikh-inclined revolutionary poet of modern Punjab, now living in exile, whose poetry has had an indelible influence on my understanding of the genesis of the Punjab problem? Well, by wishing and hoping that he can come back to his homeland Punjab and praying that he lives a fuller life.

Gajinder Singh lives his word. The 67 years of his life are an open book to see that whatever he wrote as poetry or commentary, he has lived up to that, in word and deed. This alone is the explanation that he and his compatriots could not stop themselves from taking the extreme step of indulging in the first public act by the Sikh youth -the unarmed hijacking of 29 September 1981, which caused no harm to passengers but he and his associates paid a heavy price by spending their youthful years behind the four walls of Pakistani prisons.

The decision by the Patiala House Courts judgement on 27 August 2018 exonerating Satnam Singh Paonta Sahib and Tejinder Pal Singh Does opens up the possibilities of Dal Khalsa chief and revolutionary poet Gajinder Singh’s return to homeland Punjab. Post-facto the hijacking, their jail term, Gajinder Singh has not indulged in any act whatsoever which would mar his scope for returning to his motherland.

“This is a unique case of its kind as prosecution against the present accused persons was not launched or initiated by the police but was got initiated on the filing of application for discharge by accused persons.”

Judge Ajay Pandey

The detailed  79-page, 102-para judgement of Judge Ajay Pandey last week, exonerating Satnam Singh and Tejinder Pal Singh for the allegation of “waging war” against the country in the fresh retrial 37 years after hijacking technically paves the way for Dal Khalsa founder and revolutionary poet Gajinder Singh’s return to Punjab from exile.

37 years ago, on 29 September 1981, five Dal Khalsa activists led by revolutionary poet and founder Gajinder Singh hijacked Indian Airlines Flight IC423 enroute Delhi to Srinagar and force-landed in Lahore. Gajinder Singh is in exile, Karan Singh and Jasbir Singh have sought asylum in a European country and Satnam Singh and Tejinder Pal Singh returned home to Punjab and were tried afresh for “waging war against the state”  after some peaceful years and finally acquitted on 27 August 2018.

“Should the accused not be compensated for harassment by the prosecution for their ill-baked case?”

World Sikh News

The judgement in this case overthrew all arguments of the prosecution on technical and legal grounds foisted on the Dal Khalsa activists, due to the overdrive of a magistrate who ordered retrial and the Lieutenant Governor of Delhi who granted permission for prosecution, without application of mind and evidence which could not stand the rigours of the court, even though that the accused persons chose not to lead in defence.

Primarily, the prosecution case was based on the admission of the hijacking by the accused but as argued by defence counsel Maninder Singh “the prosecution must stand on its legs.”  Judge Ajay Pandey put across four queries to determine conviction and the answers to all of them were in the negative during the course of the court proceedings.

1. Whether prosecution has not been able to prove proper application of mind for grant of sanction u/s 196 CrPC ?

The defense counsels were able to more than adequately prove by citing various Supreme Court judgements and appropriate cross examination of the Investigating Officer that the permission was obtained in a rather perfunctory and cursory manner, without application of mind. The apex court of India has held in many cases that sanction under Section 196 CrPC is not a mere formality and if so done, the prosecution is bound to fail.  In this case, neither was any disclosure statement of the accused sent to the sanctioning authority nor were any documents part of the request for sanction. The sanctioning authority was not called for evidence nor was the officer enabling the sanction was examined.

2. Whether conviction of accused persons in the absence of records and main charge­sheet of FIR no. 105/1981 would be unjustified?

It was confirmed that the conviction for Section 120/120A would be unjustified for want of the main FIR and other records of the case.  

In his order the judge clearly stated that, “this is a unique case of its kind as prosecution against the present accused persons was not launched or initiated by the police but was got initiated on the filing of application for discharge by accused persons.”

3.  Can admissions/confessions in the applications for discharge of accused persons, be acted upon?

Judge Ajay Pandey in his landmark judgement concluded that the admission by the accused that they hijacked the aircraft in their application for discharge cannot be prima facie evidence against the accused.  

Criminal jurisprudence demands that innocence is to be presumed till proven guilty.  The guilt has to be proved and courts do not merely rely on the acceptance of guilt by the accused.  Furthermore, if there is a conflicting determination, the one favourable to the accused will be accepted by the courts, however grave the suspicion may be, as was done in the present case.

“Will it be legally tenable for Gajinder Singh to file an application for relief in absentia to see the mood and inclination of the government of India?”

It was totally clear from the outset that the investigating agency did not have records, no material record pursuant to the FIR was gathered by the prosecution, the vast probabilities in favour of the accused enabled the judge to clearly say that, “it would be unjustified to convict either of the accused persons. The probabilities must be weighed in favour of accused persons.”

4. Whether prosecution has been able to satisfy the ingredients of section 121 or 121A IPC against the either of accused?

The court held that, “Even if the facts stated in the application of accused are taken on their face value and even if for the sake of arguments it is presumed that accused persons have admitted the hijacking of Indian Airlines Flight No. IC­ 423, to Lahore, Pakistan, it is rightly submitted by learned Sh. Maninder Singh that prosecution has failed  to satisfy the ingredients of section 121/121A IPC beyond reasonable doubt against either of accused.”

Significantly, the Court held that it would not accept the statement of the accused Satnam Singh that he hijacked the Indian Airlines Flight IC423 on 29 September 1981.  The judge stated that, “The court is not concerned with the nomenclature or terminology used by accused in his application. Court requires proof of each ingredient of any offence to be brought on record. …Hence, in the absence of identification and description of specific role of each accused by witnesses, this court is of the opinion that prosecution has miserably failed to prove charge u/s 121 or 121A IPC against either of accused.”

Giving benefit of doubt to the accused as the prosecution “miserably failed to prove its case against accused person beyond reasonable doubt, …the accused are acquitted of all charges levelled against them”, concluded the judge in his order.  

I wonder that if the prosecution did everything in a rather frivolous manner, then should the state not compensate the elderly  Satnam Singh and Tejinder Pal Singh for the harassment boldly faced by them in facing a second trial and the upheavals that the case had to go through which Judge Ajay Pandey has immaculately recorded in his comprehensive judgement.

As far as this case is concerned, Gajinder Singh is only an absconder and he has to present in the court a la Satnam Singh and Tejinder Pal Singh and in all likelihood he too would be released. Will it be legally tenable for Gajinder Singh to file an application for relief in absentia to see the mood and inclination of the government of India? Dal Khalsa should explore this? Will someone in the Diaspora explore treating him as a stateless citizen of the world?

Furthermore, it is to his credit that, while in exile, all these years, he has neither said anything nor done anything incriminating himself in any way.  He has steadfastly raised the issue of a country for the Sikhs because that runs in his veins.

Of course, the final call will be that of Gajinder Singh. He is active on Facebook and presents the Panthic viewpoint on religious and political developments. Naturally, he would be worried about how India assesses him and is there something sinister within the files of the Indian government’s dossier on him which they would scoop out should he choose to return to Punjab. Unquestionably, his cynicism about “what Indian can do to him” is totally justified.

Dal Khalsa, the body he formed with sweat and blood, will do well to publish his works in thousands and distribute to the nook and corner of Punjab to understand the other side of history which he so ably presents through his simple poetry. In print and in audio or may be video too by Gajinder Singh himself. His verses inspire and to be proactive. His poetic expression of pain pierces your heart. Read this,

Dosto Saath deo
Door khadhe ho ke na dekho
Assi ki karde haan
Assi taan raat-din
Dardan de doonge saagar tarde haan.

Oh friends, join us
Do not just stare from afar
And see what we do
Day and night
We swim through the high seas of pain and anguish.  

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Oh my Gur-bhai -brother-in-faith, wherever you are, stay fit, healthy and blessed. The Sikh nation needs you to live for long and continue writing as since you have been physically away from the skyline of Punjab, we have not produced anyone like you.