In the high court of punjab and haryana at chandigarh

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CWP No.9013 of 2015 Date of Decision: March 16, 2016

Dilawar Singh

...Petitioner

versus

State of Haryana

...Respondent

CORAM: HON'BLE MR. JUSTICE HARINDER SINGH SIDHU

Present: - Mr. Navkiran Singh, Advocate Mr. Navrattan Singh, Advocate Mr. Harjeet Singh, Advocate Mr. Surajpreet Singh, Advocate for the petitioner.

Mr. R.K.S. Brar, Addl. A.G., Haryana

--

HARINDER SINGH SIDHU, J.

The petitioner is a prosecution witness in case FIR No.456

dated 17.12.2014, under Section 302 IPC, Police Station Ambala City.

The trial of the case is being conducted before the learned Sessions

Judge, Ambala. On 18.04.2015, the petitioner went to the Court to give his

statement as prosecution witness. He being an Amritdhari Sikh was

bearing a Kripan on his person. Ld. Sessions Judge, Ambala objected to

the same and directed him to remove the Kirpan in case, he wanted to

appear as a witness.

When the petitioner refused to do so on the plea of his religious

freedom, Ld. Sessions Judge did not record his statement and directed

him to appear in Court without wearing his Kripan. The order of the Ld.

Sessions Judge is reproduced as under:

present. Statements of four of them namely Constable Parveen

Kumar, Jaswinder Pal Singh, Darshan Singh and Constable Pardeep Kumar recorded.

Another present PW is Constable Jasbir Singh. Learned Public Prosecutor submits that after examination of

PW HC Manoj Kumar, this witness is likely to be given up. As per request of Ld. Public Prosecutor, PW Constable

Jasbir is discharged for today.

Another present PW is Dilawar Singh. Said witness had appeared along with a 'Kirpan' around his waist,

which is quite evident to the open eye. When he was asked to come to the Court after removing the same, he refused to do so on the plea that it is his religious symbol. Ld. Public

Prosecutor makes a request to adjourn the case for recording the statement of this witness submitting that he will

make the witness understand that he has to appear in the court without the supporting the 'Kirpan'. As per request,

PW Dilawar Singh is discharged for today and bound down for 14.05.2015.

Summons of PWs Dr. Deepika, Dr. Gaurav received unserved. Request of PWs HC Manoj Kumar,

Constable Sunil Kumar ASI Naresh Kumar received.

It is informed by Ld. Public Prosecutor that PW Dr. Y.S. Bansal has made a request to examine him through

video conferencing but his statement cannot be recorded today as the case property has not been received so far from

the FSL.

PW Devinder Singh has been given up by prosecution as unnecessary. Statement of Ld. Public

Prosecutor recorded to that effect.

Now summons to all remaining un-examined PWs except I.O. and PW Dr. Y.S. Bansal be issued for

14.05.2015.

Prosecution is directed to ensure the presence of case property alongwith FSL report on the date fixed.”

The petitioner has filed this writ petition for quashing the

aforesaid order on the ground that it violates his fundamental rights to

profess and practice his religion.

In the written statement filed on behalf of the State of Haryana,

it has been stated that Kirpan should be considered as a religious symbol

relating to the Sikh religion and there should be no restriction on wearing

Kirpan by Sikhs while appearing in the Court. Reference has also been

made to some cases in U.K. and U.S.A. where the carrying of kirpan, as a

manifestation of the Sikh faith has been recognized. It is also stated that

in certain foreign provinces and States namely British Columbia, Toronto,

Alberta etc. baptized Sikhs have been allowed to carry kirpan in the

Courts.

I have heard Sh. Navkiran Singh for the petitioner and Sh.

R.K.S. Brar, Additional, Advocate General, Haryana for the respondent.

The Five Kakars- Outwards symbols of Sikh faith

It is now universally accepted that the wearing of five Kakars. -

Kesh (unshorn hair), strapped Kirpan (sword), Kachhehra (prescribed

shorts), Kangha (Comb tucked in the tied up hair), Karha (Steel bracelet) is

a mandatory requirement for every Amritdhari Sikh. However reference is

being made to a few authoritative works on Sikh religion and history, solely

with a view to understand the significance and importance to an Amritdhari

Sikh of the five Kakars, of which kirpan is one, as only in such a backdrop

would it be possible to understand the anguish and consternation that the

impugned order has evoked in the petitioner as has been forcefully put

across by Sh. Navkiran Singh, Ld. Counsel for the petitioner.

The Shiromani Gurdwara Prabandhak Committee, Sri Amritsar,

the representative Sikh body constituted under the Sikh Gurdwara Act,

1925 to manage the Sikh Gurdwaras, had sanctioned a project to bring out

a consistent and coherent account of Sikh history, which was to be

presented in five volumes, each involving a distinct period of Sikh history.

It was to be a cooperative effort of such leading historians as could make a

solid contribution to the discipline of Sikh history.

Volume I of the work titled as History of the Sikhs and their

covering the Guru Period from 1469-1708, edited by Dr. Kirpal

Singh and Dr. Kharak Singh, both distinguished scholars of Sikhism was

published in the year 2004. Chapter X of this Volume titled `Emergence of

the Khalsa' describes the emergence of the Khalsa as the logical outcome

of Guru Nanak's blueprint. It gives a vivid account of the unique event of

the founding of the Khalsa by Guru Gobind Singh, the essential code of

conduct enjoined on those initiated, including the obligation to wear the

five Kakars as under:

“The Guru, whether he was at Anandpur Sahib or at Paonta or any other place, was persistent in his efforts to create that ultimate

instrument, which would help him achieve his objective. He followed the path shown by his predecessors, which was indeed a primary impulsion,

epitomizing what Sikhism stood for in terms of doctrine, society, individual and corporate living, and ultimate destiny of the creation at universal

level. The praxis was the Khalsa.

The Guru decided to put his plan into operation on the first of Vaisakh 1756 BK (March 29, 1699 CE). He sent hukamnamas to his

followers inviting them to visit Anandpur Sahib in full strength on the Vaisakhi festival.

The Sikhs responded by gathering in very large numbers at Anandpur Sahib on the day of the festival, March 29, 1699 CE. Guru

Gobind rose early and sat in meditation. He then appeared before the sangat who hailed him with shouts of greetings. Bhai Mani Singh gave

exposition of a shabad from Adi Granth. Guru Gobind Singh then stood before the assembly with his sword unsheathed and spoke, “Is there

anyone here who would lay down his life for his Guru and dharma.” It was an amazing call, and no wonder, his words struck confusion among the

gathering. They did not know what the Guru meant and gazed in awed silence until he spoke again. Now confusion turned into fear. For the third

time, Guru Gobind repeated his call. Daya Ram, a Sikh of Lahore, rose and said in utter humility, “My head is at thy disposal, my True Lord.

There would be no greater gain than dying under the sword.” He walked with the Guru to a specially improvised enclosure close by. The Guru

returned with his sword dripping blood, and waving it to the multitude asked for another head. This was more than anyone could endure.

People started leaving the place. Some of them went to complain to the Guru’s mother. But a Sikh from Delhi, Dharam Das, came forward to offer

himself for sacrifice for the Guru. He, too, was taken to the enclosure. In the same way the Guru made three more calls. Mokham Chand, a Sikh

from Dwarika, Himmat, a Sikh from Jagannth, and Sahib Chand, a Sikh from Bidar cheerfully responded one after another and advanced to offer

their heads.

A while after, the G uru led the five Sikhs back f r o m the enclosure into which he had taken them one by one. In the enclosure

confidentially guarded, he had kept sets of apparel especially designed for the occasion. Decked in saffron-coloured gorgeous outfits topped over

with neatly tied turbans of the same colour, the glorious five walked deferentially behind the Master, overwhelmed with gratitude. The Guru

was himself attired in the same manner as his chosen disciples.

The gathering considerably thinned and still in shocked muteness was

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