CRM M-12119 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM No.22317 of 2009 and CRM M-12119 of 2009 Date of Decision: 25.8.2009 Yoginder Singh Joshi and another ....Petitioners. Vs. State of Punjab ..Respondent. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present : Mr.A.P.S.Doel, Sr.Advocate with Ms.Manpreet Kaur, Advocate for the petitioners. Mr.K.D.Sachdeva, Addl.AG Punjab for the State/respondent. RAKESH KUMAR JAIN, J. The petitioners have applied for grant of anticipatory bail in case registered vide FIR No.126 dated 28.6.2008 under Sections 302, 447 IPC and 25/27/54/59 of Arms Act at Police Station Mandi Gobindgarh, District Fatehgarh Sahib in which the petitioners have been summoned vide order dated 10.4.2009 (Annexure P-7) under Section 319 Cr.P.C. through warrants of arrest. The aforesaid FIR was registered on the statement of Tarsem Singh, who had stated that he deals in iron. He had three sons. His Mill – H.M.Steel Corporation, situated behind Cheema Petrol Pump, Mandi Gobindgarh, is lying closed. He had a dispute regarding plot of this mill with Rajinder Singh alias Jindra, which is pending in the Court at Amloh. He is in possession of the plot. On 27.6.2008, he came to know that Rajinder Singh alias Jindra wanted to take possession of the aforesaid plot. CRM M-12119 of 2009 -2- He along with his son Amrinder Singh alias Midha (since deceased), Lovepreet Pal Singh, Beant Singh alias Antee, Sher Singh alias Sheru reached at the aforesaid plot in their Indica Car No.PB-48-C-5500 at about 11 p.m. The main gate of the plot was broken and bricks were stacked in order to take possession and Rajinder Singh alias Jindra, Satpal, Rana, Lajpat Rai alias Lala, Yoginder Pal Joshi, Jugal Kishore and some other persons including labour were trying to take possession of the plot. It is further alleged that when the complainant tried to stop the aforesaid accused, at that time, Rajinder Singh alias Jindra and Satpal (since deceased) raised a Lalkara that it was their plot. This led to mutual exchange of abuses. Jugal Kishore caught hold of the complainant from collar and started giving him slaps. Rana took to scuffling with Beant Singh alias Antee. Lajpat Rai alias Lala scuffled with Sher Singh alias Sheru, Yoginder Pal Joshi started throwing bricks towards complainant party. In the meantime, Satpal and Rajinder Singh alias Jindra took out pistol and started firing towards his son Amrinder Singh alias Midha with an intention to kill him. In the said firing, one shot hit his son Amrinder Singh alias Midha on the left side of his chest and one shot hit the abdomen. Amrinder Singh alias Midha also fired a shot which hit Satpal, thereafter, they took the injured Amrinder Singh alias Midha to Hospital for treatment. Before coming to this Court, the petitioners had applied for anticipatory bail before the Court below, which was dismissed by Additional Sessions Judge Fatehgarh Sahib on 27.4.2009. Initially the petitioners were kept under Column No.2 but on an application filed by the prosecution under Section 319 Cr.P.C., they have been summoned by the trial Court through warrants of arrest. CRM M-12119 of 2009 -3- Learned Sr.Counsel for the petitioners has, inter alia, argued that the role attributed to petitioner No.1 in the FIR is that he caught the complainant by collar of the shirt and slapped him and to petitioner No.2 is that he started throwing brick-bats towards the complainant party. It is submitted that allegation of use of fire arm is against Satpal and Rajinder Singh alias Jindra, out of them Satpal has already expired in the said incident. It is submitted that the petitioners were not present at the scene of occurrence, which has been proved in the investigation as it is apparent in the report of Deputy Superintendent of Police, Amloh and the report of Sr.Superintendent of Police, Fatehgarh Sahib. It is also submitted that there is a dispute between the parties in which the petitioners have lodged FIR Annexure P-3 as a result of which they have been dragged in the present occurrence by the complainant. Counsel for the State has, inter alia, argued that admittedly the order of summoning Annexure P-7 has not yet been challenged by the petitioners. It is further submitted that role of both the petitioners is clearly mentioned in the FIR that they had actively and collectively participated in the crime. Insofar as the report of Deputy Superintendent of Police as well as Sr.Superintendent of Police is concerned, counsel for the State has relied upon a decision of the Apex Court in Dalip Singh Vs. State of Punjab 1998 SCC (Cri) 207 and referred to para 8 thereof, which is reproduced as under: “Coming now to the defence witnesses, we find that Swaran Singh (DW 1) and K.S.Kailey (DW 5), Deputy Superintendent of Police and Additional Deputy Superintendent of Police respectively of Ferozepur were examined to testify that they had perused the case diary CRM M-12119 of 2009 -4- prepared by the Investigating Officer and interrogated some of the accused and other persons. On their such exercise they found that three of the accused, namely Dalip Singh (appellant), Shabeg Singh and Arjan Singh were innocent. In our considered view, the Designated Court ought not to have permitted the defence to adduce the above evidence as it is not legally admissible. In Vijender v. State of Delhi a Bench of this Court, of which one of us was a member (M.K.Mukherjee, J.) while dealing with a similar question observed as under: “The result of investigation under Chapter XII of the Criminal Procedure Code is a conclusion that an Investigating Officer draws on the basis of materials collected during investigation and such conclusion can only form the basis of a competent court to take cognizance thereupon under Section 190(1)(b) Cr.PC and to proceed with the case for trial, where the materials collected during investigation are to be translated into legal evidence. The trial Court is then required to base its conclusion solely on the evidence adduced during the trial; and it cannot rely on the investigation or the result thereof.” We may further add that if the result of investigation was to be made the basis of a Court's verdict regarding guilt or innocence of an accused, there would be no need of a trial in a police case for, relying on the report submitted under Section 173(2) Cr.PC a court would be entitled to decide the fate of the person arraigned. The evidence of DWs 1 and 5 must, therefore, be left out of our consideration. Incidentally, we may mention that in spite of the opinion expressed by the above two superior officers charge-sheet was submitted by the Investigating Officer against the above mentioned three accused.” He has further submitted that none of the eye witnesses have been examined and if the petitioners are appearing before the Court below, CRM M-12119 of 2009 -5- then it is only under interim order of this court. After hearing the learned counsel for the parties and keeping in view the facts and circumstances of the case, I do not find it to be a fit case for grant of anticipatory bail to the petitioners as it is a case in which both the petitioners have been named in the FIR and they have actively participated in the commission of crime as a result of which two persons have lost their lives. Therefore, the petition is dismissed. (RAKESH KUMAR JAIN) 25.8.2009 JUDGE Meenu