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.