IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No.M-13263 of 2011 Date of decision: 19.08.2011 Mati Singh …. Petitioner Versus State of Haryana …. Respondent Present : Mr. R. S. Mamli, Advocate for the petitoner. Mr. G. S. Sandhu, AAG, Haryana. *** S.S. SARON, J. Heard counsel for the parties. Petitioner-Mati seeks regular bail in a case registered against him on 21.05.2009 for the offences under Sections 302, 148, 149, 323 and 506 IPC. FIR in the case has been registered on the complaint of Smt. Raj Rani. According to the complainant her husband had died about five years ago. She has three sons and seven daughters. Her children stay at Nilokheri. She stays alone at Dera Japti Chhapra, where her nephew (Bhanja) Jaimal stays. Her eldest son is Jasbir, younger to him is Jagir Singh and Lakhbir Singh is the youngest of all. She has about 8¾ ‘killas’ (acres) of land in village Japti Chhapra which is near Dera Sikli Gran. The complainant Raj Rani has a dispute with respect to the said land with Ishtakar Hussan son of Abid Hussan and Karam Singh son of Jiwan Singh residents of Japti Chhapra. A civil litigation with respect to the said land is Crl. Misc. No.M-13263 of 2011 [2] also pending. Smt. Raj Rani on 21.05.2009 at about 8.30 pm asked her nephew Jaimal Singh to make a telephone call to her son namely Jasbir Singh and inform him that some ladies of Sikli Gran caste were harassing her, besides, abusing her. She (complainant-Raj Rani) asked that her son Jasbir Singh should come and get the matter decided and her land be given to her. The sons of the complainant, namely, Jasbir Singh, Lakhbir Singh and Jagir Singh; besides, Balwinder Singh, Joginder Singh, Saravjit Singh, Pal Singh, Jaswinder Singh, Dharambir all residents of Nilokheri came in a Tata Sumo vehicle and went to Jaimal and after hiring a tractor on rent started ploughing the sugar cane field. After sometime Karam Singh son of Jiwan Singh and Mati Singh (petitioner) son of Karam Singh and Mundi who is ‘Samdhi’ of Karam Singh and also the wife and daughters of Karam Singh; besides, Tahir Abbas, Zahir Abbas, Ishtakar residents of village Japti Chhapra; as also Jag Singh and Lakhi Singh residents of village Dera Sikli Gran came armed respectively with Lathis, Barchhas and Balam in their hands and they were carrying cans of kerosene oil with them. On reaching, Karam Singh raised a ‘Lalkara’ and said that a lesson be taught to them (complainants) for ploughing the fields and they should not go scot-free. By saying this, they attacked with their weapons and caused injuries. Mati Singh (petitioner) it is alleged gave a ‘Balam’ blow in the stomach of Jagir Singh son of the complainant-Raj Rani and his intestines came out. Jagir Singh died in the said incident. The earlier petitions filed by Mati Singh i.e. Crl. Misc. No.M-34073 of 2010 and Crl. Misc. No.M-336 of 2011 for grant of regular bail were dismissed by this Court on 22.11.2010 and 25.03.2011 respectively. The prosecution at present has examined 29 witnesses in the case and only the Investigating Officer remains to be examined. Crl. Misc. No.M-13263 of 2011 [3] On the last date of hearing, learned counsel appearing for the petitioner had placed on record copies of the various interim orders passed by the learned trial Court in the cross-case filed by Karam Singh against Smt. Raj Rani, Jasbir Singh, Lakhvir Singh, Davinder Singh, Jai Mal Singh, Sarvjit Singh alias Sonu, Pal Singh, Jasvinder Singh, Dharamvir and Joginder Singh alias Gobinda. On the strength of the said interim orders, it is contended that the accused in the cross-case who are complainants in the case against the petitioner side, are not appearing before the trial Court and the case is being adjourned from time to time. The next date now in the cross-case has been fixed for 16.09.2011. It is because of non-appearance of the accused in the cross-case that the trial in the present case is also being delayed. It is also submitted that the complainant-Raj Rani has now filed an application under Section 319 of the Code of Criminal Procedure (Cr.P.C- for short) for summoning additional accused in the present case. The application filed by complainant-Raj Rani was dismissed by the learned trial Court on 18.02.2010. Against the order of dismissal of the said application, the complainant-Raj Rani has filed Criminal Revision No.2827 of 2010 in this Court along with an application seeking condonation of 66 days delay in filing the revision petition. It is submitted that notice of motion has been issued in the said criminal revision petition and the case is now fixed before this Court on 01.09.2011. Therefore, it is submitted that the trial in the present case is likely to be further delayed. The petitioner is in custody since 07.06.2009. A cross-case has been filed by Karam Singh with respect to the incident that had occurred on 21.05.2009 at 8.30 pm. According to the cross version, the complainant Raj Rani has no concern with the land in dispute as Tahrir and Mati (petitioner) are joint in owners in possession of the said land. They were in possession Crl. Misc. No.M-13263 of 2011 [4] of the said land in pursuance of an agreement to sell dated 09.02.2009. Sher Singh son of Puran Singh resident of Poultry area, Nilokheri District Karnal (who is the predecessor in interest of Raj Rani, Jasbir Singh, Jagir Singh and Lakhbir Singh) had entered into an agreement to sell in favour of Karam Singh son of Jiwan Singh and Istikar Hussan son of Abid Hussan after receiving full payment. The agreement to sell had been entered on 03.06.1999 and possession of the land was delivered. Since the date of agreement, Karam Singh and others are stated to be using the land in question as owners. So the legal heirs of Sher Sing, it is stated, are bound to abide by the said agreement. According to Karam Singh, he had purchased the land from Sher Singh about eleven years back for a sum of Rs.2,25,000/-. The possession of the land was given to him and to Istikar Hussan son of Abid Hussan. The sale deed, however, in terms of the agreement could not be executed in favour of Karam Singh and Istikar Hussan because Harbhajan son of Dogra had filed a suit in the Civil Court. Karam Singh was contesting the suit and spending the amount on behalf of Sher Singh. The case was decided in favour of Harbhajan Singh. After decision of the said suit in January, 2009, they (i.e. Karam Singh and Istikar Hussan) entered into an agreement to purchase the land for Rs.65,00,000/- and paid Rs.10,00,000/- to Harbhajan Singh. The sale deed had, however, could not been executed in their names. Out of this land, in four acres of land, sugarcane crop had been sown by Istikar and in half acre sugarcane crop of Karam Singh was standing. In two acres Maize and in the remaining land ‘chari’ had been sown. Since the last three months Raj Rani wife of Sher Singh and their sons started saying that the land belongs to them because the Girdwari was in their name. Karam Singh etc. had told them that they have Girdwari only for one acre and they had already Crl. Misc. No.M-13263 of 2011 [5] purchased the same. They (i.e. Raj Rani and her sons), however, did not agree. On 21.05.2009 at 3.30 pm, Smt. Raj Rani and her sons Jasbir Singh, Jagir Singh and Lakhbir Singh came in a Tata Sumo vehicle along with their companions whose names later on came to be known as Dharambir, Joginder, Saravjit Singh, Pal Singh, Jasbir Singh, Devinder Singh all residents of Nilokheri and another resident of Dachar who is a relative of Jaimal, Ali Abbas resident of Sayyed Chhapra and Jaimal resident of Japti Chhapra came with danda, barchhi, sword, kulhari. Jaimal was driving the Eicher Tractor and they ploughed the sugarcane field and started destroying the sugarcane crop. Raj Rani brought kerosene oil in a jerry can and sprinkled it on the sugarcane crop and put fire on one side. At that time Karam Singh and his daughters Dhan Kaur, Roop Kaur and Gulab Kaur were working. Zahir Abbas and Tahir Abbas were working in the field. The daughters of Karam Singh opposed the intruders and stood in front of the tractor. Jasbir Singh then gave a ‘Kirpan’ blow to Gulab Kaur. Jaimal after getting down from the tractor gave a ‘Kulhari’ blow on the person of Dhan Kaur. Lakhbir also gave a ‘Lathi’ blow to Dhan Kaur while Tahri and Devinder kicked Roop Kaur after making her fall on the ground. Zahir Abbas and Tahir Abbas made a noise. On seeing the fire in the sugarcane field many people from the village came there. Karam Singh etc. also gave injuries in their defence to the other party. On seeing many persons coming from the village, the assailants with their weapons went away from the spot on their tractor. Karam Singh etc. got the girls admitted with the help of villagers in Hospital, Indri and they were referred to Karnal. It is alleged that the aforementioned intruders with the intention of encroaching and by ploughing the crop with the tractor and by putting fire and destroying sugarcane crop had committed an offences for which action was liable to be Crl. Misc. No.M-13263 of 2011 [6] taken. On the statement of Karam Singh, a cross-case for the offences under Sections 148, 149, 323, 324, 435, 427, 447 and 511 IPC was registered against the complainant side in the present case i.e. Raj Rani and others. According to Karam Singh and others, the complainant side of the present case had attacked them and they are the aggressors. Both the cases are going on in the trial Court. However, on the complaint lodged by Karam Singh, the accused are not appearing and are delaying the trial of the case on the one pretext or the other. In terms of the interim orders that have been filed it may be noticed that on 27.01.2010, the accused Surjit Singh was absent without intimation. His bail bond was cancelled and he was summoned through non-bailable warrants. The witnesses Karam Singh, Mati Singh (petitioner) and Lakhi Singh were present on 27.01.2010 and were discharged. On 18.02.2010, Saravjit Singh was admitted to bail in the sum of Rs.25,000/- with one surety in the like amount. However, the surety furnished by him was rejected as the learned Additional Sessions Judge was not satisfied regarding the solvency of the surety. Thereafter, Sarvjit Singh it appears was released as on 04.05.2010, he (Saravjit Singh) was absent and he did not appear. His bail bonds and surety were cancelled and non- bailable warrants for his arrest were issued. On 14.07.2010, Saravjit Singh did not put in appearance and a period of more than 30 days had elapsed from the date of publication of proclamation. Accordingly, he was declared proclaimed offender; besides, Jasbir Singh accused had filed an application for seeking exemption from personal appearance due to death of his relative. The presence of Jasbir Singh was exempted for the said date i.e. 14.07.2010. Crl. Misc. No.M-13263 of 2011 [7] On 17.08.2010, PWs Roop Kaur, Gulab Kaur , Dhan Kaur, Karam Singh, Tahir Abbas and Constable Virender Singh were present, but they could not be examined as accused Joginder Singh was absent without intimation to the Court and his bail bond was cancelled and forfeited to the State. On 17.09.2010, accused Joginder Singh surrendered in the Court. Joginder Singh was taken in custody and was ordered to be produced on 06.10.2010. Case was called several times. However, Jaimal Singh accused was absent. His bail bond was cancelled and forfeited to the State. He was ordered to be summoned through non-bailable warrants. On 06.10.2010, Joginder Singh pleaded guilty to the notice under Section 446 Cr.P.C that had been served and penalty of Rs.2000/- was imposed. Besides, Joginder accused was re-admitted to bail. On 21.01.2011, Gulab Kaur , Dhan Kaur, Tehrir Abbas and Lakhi Singh were present, but their statements could not be recorded as accused Pal Singh was absent. Therefore, the witnesses were discharged, besides, the bail of Pal Singh was cancelled and the bonds were forfeited to the State. On 11.07.2011, Dharambir accused did not appear and no explanation was given regarding his absence nor was any application was filed on behalf of Dharambir accused for seeking exemption. It appeared to the learned trial Court that accused Dharambir had deliberately absented himself just to prolong the trial as the witness Gulab Kaur was present, who was discharged due to absence of Dharambir. Therefore, on the basis of the interim orders as have been produced on record, it is quite apparent that the accused in the cross-case on the complaint of Karam Singh are not appearing on one pretext or the other. Crl. Misc. No.M-13263 of 2011 [8] In fact in the order dated 11.07.2011, the learned trial Court has itself observed that it appeared that Dharambir accused had deliberately absented himself. Besides, Raj Rani-complainant has filed criminal revision petition against the order declining her application under Section 319 Cr.P.C. Therefore, the trial in the case is indeed delayed and even though Raj Rani- complainant has a right to file a revision petition but the accused in the cross-case on the complaint of Karam Singh are not appearing. All the other co-accused of the petitioner have been granted regular bail. The petitioner as already noticed is in custody since 07.06.2009 i.e. for the last more than two years. Article 21 of the Constitution of India provides for speedy trial of an accused and when the right of an accused for speedy trial is affected, the Court is to pass appropriate remedial orders which may even be of grant bail. The petitioner from the interim orders that have been filed, a reference to which has been made above, has shown that the delay in the trial is not on his part but on the part of the accused in the cross-case. In the circumstances and keeping in view the fact that the trial in the case is being delayed by the complainants’ side, who are accused in the cross-case, it would be just and expedient that the petitioner is granted the concession of bail. Accordingly, criminal miscellaneous petition is allowed and the petitioner on his furnishing personal bond and surety to the satisfaction of the learned Chief Judicial Magistrate, Karnal, shall be released on bail. (S.S. SARON) JUDGE 19.08.2011 A.Kaundal