Crl. Misc. No. M-17099 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-17099 of 2011 (O&M) Date of decision : 22.07.2011 Deepak and another .....Petitioners Versus State of Haryana ......Respondent CORAM : HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Navneet Singh, Advocate for the petitioners Mr. Sandeep Vermani, Addl. A.G. Haryana RAJESH BINDAL, J. The petitioners have been named in the FIR on a complaint filed by one Goverdhan who stated to be himself eye witness of the incident. He has specifically named certain persons who were there at the place of incident carrying Iron Pipe, Gandasi and Kulhari etc. and had mercilessly beaten up Vinod Kumar, the injured. The petitioners have approached this Court seeking pre- arrest bail placing reliance upon the affidavit sworn by the injured Vinod Kumar dated 6.4.2011 and one application filed by him to the Police Commissioner, Gurgaon on 18.4.2011 where injured Vinod Kumar stated that the petitioners in the present case were not present at the time of alleged incident and they had not injured him. The submission is that petitioners are not involved in the case and they deserve to be granted anticipatory bail. On the other hand, learned counsel for the State submitted that besides the statement Crl. Misc. No. M-17099 of 2011 2 of Goverdhan on the basis of which FIR in question was registered there was another eye witness to the incident namely Naresh whose statement was recorded on the date of incident i.e. 6.2.2011 immediately after registration of FIR on 6.2.2011 who endorsed whatever was stated by Goverdhan in the FIR. Injured was admitted in hospital on 6.2.2011 and was discharged on 9.3.2011. He further submitted that there is statement of three other accused named in the FIR who also stated that the present petitioners were also accompanying them at the time of fight. Considering the allegations against the petitioners in the FIR and the statement of another witness to the incident recorded on the same date and the kind of injuries suffered by the complainant side, I do not find this to be a fit case for grant of pre-arrest bail to the petitioners merely on the basis of affidavit of one of the injured produced in Court which is dated 6.4.2011 and the same had been pasted after having torn out from the middle vertically. The present petition is dismissed. Before parting with the order this Court would like to place on record certain facts regarding conduct of Executive Magistrate. This Court on 31.5.2011 passed the following order;- “ Learned counsel for the petitioners states that injured Vinod Kumar s/o Rajje has stated by way of affidavit, which was duly attested by Executive Magistrate, Gurgaon on 6.4.2011, that present petitioners are not involved in the incident and they were named in the FIR due to misunderstanding. Learned counsel for the petitioners has handed Crl. Misc. No. M-17099 of 2011 3 over the original affidavit dated 6.4.2011, which is taken on record. Perusal of the original affidavit also goes to show that the same is torn into two pieces and the same was lateron pasted with gum with the help of pieces of paper. Perusal of the original affidavit further reveals that it contains the seal of Tehsildar, Gurgaon on the first page while has one seal on the second page showing affidavit has been attested before the Executive Magistrate. No name of the Executive Magistrate is mentioned in the affidavit who has allegedly attested this affidavit. Moreover the said affidavit was attested on 6.4.2011 while the deponent was identified by an Advocate on 7th April, 2011 i.e. on the next day. Even name of the Advocate, who has identified Vinod, is not clear. This seems to be very serious matter. On being asked Mr. Gaurav Dhir, Deputy Advocate General, Haryana has accepted notice on behalf of State. He has assured the Court that he will personally look into the matter and shall report to the Court as to whether this affidavit is attested by any Executive Magistrate of Gurgaon. He will further inform the Court under what circumstances Tehsildar/Executive Magistrate has not mentioned his name on the affidavit and has not attested/verified in accordance with law and under what circumstances the same was got identified from an Advocate on the next day i.e. 7.4.2011. A photocopy of the original affidavit be supplied to Mr. Gaurav Dhir for Crl. Misc. No. M-17099 of 2011 4 verification. Let original affidavit be kept in seal cover in the custody of the Registrar General and Registrar General shall produce the original before this Court as and when he is required to do so. Learned counsel for the petitioners has further stated that injured has also submitted one application before the Commissioner of Police, Gurgaon stating that petitioners are not involved in the incident and their names have been mentioned in the FIR due to misunderstanding. Let Commissioner of Police/Investigating Officer enquire about the authenticity of the application. Investigating Officer shall file his affidavit on or before the next date of hearing specifically stating therein about the authenticity of application and affidavit filed before this Court. List on 22.7.2011. A copy of this order be given dasti to the State Counsel under the signature of the Court Secretary.” The sealed envelope was called for from the Registrar General's Office and opened in Court. The affidavit in original is torn out from the middle vertically and has been pasted later. Perusal of the affidavit shows that the stamp paper was purchased on 6.4.2011, the same was typed on the same date and attested by some Executive Magistrate on 6.4.2011 without mentioning his name. The Crl. Misc. No. M-17099 of 2011 5 stamp put by him on the affidavit shows “Attested as Identified”. As is apparent from the affidavit, there was no identification on the date the Magistrate attested the same i.e. 6.4.2011. On the second page of the affidavit apparently the deponent was identified by some Advocate on 7.4.2011. The name of the Advocate identifying the deponent is also not very clear, only signatures have been appended. For the purpose of grant of anticipatory bail to the petitioners the affidavit of the injured obtained by them was sought to be relied upon. In terms of the order passed on 31.5.2011, affidavit of SI Rajender Singh, Police Station, Sector-56, Gurgaon dated 21.7.2011 has been filed in the Court which is taken on record. It is stated therein that the Executive Magistrate who attested the affidavit on 6.4.2011 is Jivender Singh, Naib Tehsildar, Sohna. In his statement recorded by Investigating Officer, he stated that the affidavit was produced before him on 6.4.2011. It carried stamp of Office of Tehsildar Gurgaon and photograph of the deponent. To ascertain the authenticity, he asked him to sign in his presence and thereafter attested the affidavit. The identification by some counsel on the affidavit was not there when he attested the affidavit and the same have been done lateron. The attestation by the Executive Magistrate is on the basis of identification. As to who identified the deponent that he is Vinod Kumar son of Rajje, nothing was before the Executive Magistrate. The identification by some counsel is later in time. As regards mentioning of the names of the persons attesting the affidavits, I find that repeatedly the affidavits and documents were Crl. Misc. No. M-17099 of 2011 6 being attested by Executive Magistrates and produced in the Court without mentioning their names and in some of them even dates were not mentioned. This Court passed a detailed order on 7.3.2011 in R.F.A. No. 734 of 2011 referring to the provisions of the Code of Civil Procedure as well as High Court Rules and Orders which inter alia required the attesting officer to put his name and date while attesting a document. The copy of the order was sent to the Chief Secretaries of Punjab and Haryana and also to Home Secretary, U.T. Chandigarh for compliance but still in the present case the affidavit has been attested by the Executive Magistrate on 6.4.2011 without mentioning his name thereon. It is apparent casualness. If the officer concerned has been given power to attest documents, it is his duty to see that he perform his duty diligently. Copy of the Order be sent to Chief Secretary, Haryana. The affidavit in original may kept in sealed cover and placed on file. (RAJESH BINDAL) 22.07.2011 JUDGE reena