Criminal Misc. No. M-21176 of 2008 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Misc. No. M-21176 of 2008 Date of Decision: 21.8.2008 Jagmohan Dyal Singh …Petitioner Versus State of Punjab …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr.K.T.S.Tulsi, Senior Advocate with Mr. Manish K. Sayal, Advocate for the petitioner. Kanwaljit Singh Ahluwalia, J. (Oral) The present petitioner has been nominated as accused in case FIR No. 54 dated 2.6.2008 registered at Police Station Goindwal Sahib, Tarn Taran, under Section 304 IPC. The petitioner, as per the prosecution, is alleged to have fired a shot, which hit deceased on the back of his neck. For ready reference, translated FIR which has been made part of the paper book is reproduced below:- “Statement of Shamsher Ansari, s/o Sadiq Ansari, Resident of Ganj Banjar Khada, Distt. Khushi Nagar, UP aged 18/19 years, now resident of Amb, Railway Fatak, Fatehabad. Stated that I am the resident of aforesaid address. Today time would be 2½ -3 PM that Jaggu s/o Madan Lal Mehra, resident of Criminal Misc. No. M-21176 of 2008 2 Uncha, Distt. Kapurthala and two other persons were also with him, who were preparing Bhang in the orchard of Mango. I and my companion Sattu tried to stop them for preparing Bhang and not to pluck the mangoes. Jaggu who was armed with Datari came towards me and he abused me. In the meantime, Jag Mohan Dayal Singh @ Beena s/o Ravishar Singh Ahluwalia, resident of Fatehabad, who is the owner of orchard came and he told him all the incident and on this Jagmohan Dyal Singh asked him that why they do the work of Bhang in his orchard and why they pluck mangoes and due to that there was some altercation between both of them. Then, Jag Mohan Dyal Singh fired a shot from his revolver, which hit on the back of neck of Jaggu and he fell down and after that both of them ran away. Then Jag Mohan Dyal Singh @ Beena put Jaggu in his Gypsy bearing regn. No. PB-63-B-2997 and took him to Tarn Taran Hospital and later I came to know that Jaggu died while reaching in the hospital. The reason for dispute is that Jag Mohan Dyal Singh has stopped Jaggu etc. from making Bhang and plucking of mangoes. I have heard my statement, which is correct. LTI Shamsher Ansari”. After reading the FIR, counsel for the petitioner has made threefold submission. Firstly, it has been contended that it is the property Criminal Misc. No. M-21176 of 2008 3 of petitioner where the deceased had come and when restrained he took out a dattar and which led the petitioner to fire a shot from his revolver. Therefore, it has been contended that in the present case at the most petitioner can be held liable for exceeding the right of self-defence of life and property. To fortify the submission, counsel for the petitioner has relied upon Mahabir Chaudhary v. State of Bihar (1996) 5 Supreme Court Cases 107 and has drawn my attention to paras 9, 11 and 12 to contend that law does not require any citizen to act like a coward and run form the spot and situation when his property and life is under threat. It has been contended that right of self-defence cannot be weighed in golden scales. During course of arguments, reliance has been also placed on Gudikanti Narasimhulu and Others v. Public Prosecutor, High Court of Andhra Pradesh (1978) 1 Supreme Court Cases 240 wherein a question was considered whether bail or jail should be the maxim which could be invoked by the Courts. While deciding anticipatory bail, the Court has to be guided by the principle whether bail will hamper investigation and maintain the balance between the right of accused to get bail and necessity of the Investigating Agency regarding custodial interrogation. Counsel for the petitioner has also relied upon Shri Gurbaksh Singh Sibbia and Others v. State of Punjab (1980) 2 Supreme Court cases 565 to contend that provisions under Section 438 Cr.P.C. are not eclipsed by Sections 437 and 439 Cr.P.C. Second argument raised before me is that there are material discrepancies in the prosecution case. It was contended that in the FIR Criminal Misc. No. M-21176 of 2008 4 it has been recorded that accused took the deceased in his gypsy to Tarn Taran Hospital, It was submitted that in the post mortem report in the hospital as to in column who brought the dead body, it has been recorded that the dead body was brought by two constables of Police Station Goindwal Sahib and the dead body was brought at 12.30 P.M. on 3.6.2008. My attention has also been drawn to the register maintained by the hospital wherein it has been written that on 2.6.2008 at 3.45 P.M. an unknown person's dead body was brought by accused Jagmohan Dayal. It has been stated that in the present case occurrence took place on 2.6.2008 at 2.30 P.M. or 3.00 P.M. This Court observed during course of arguments that in that case Section 106 of the Indian Evidence Act will be attracted as in the hospital register and in the FIR it has been stated that the deceased was taken by the accused in his gypsy. When the dead body and the accused left together, law demands that it is for the accused to explain as to from where the dead body was brought and as to why delay took place. This part can only be disclosed by the accused during investigation. Third argument raised before me is that the petitioner has inimical relations with the investigating agency. They approached the Human Rights Commission to urge that the investigation conducted in this case is not fair and impartial and the Investigating Officer is inimically deposed towards the petitioner. The petitioner is at liberty to make a prayer under Section 482 Cr.P.C. for change or transfer of investigation. So far this Court is concerned, it has to examine to the limited extent whether the petitioner is entitled to pre-arrest bail or not. Criminal Misc. No. M-21176 of 2008 5 I am of the view that in the present case, petitioner is not entitled to pre-arrest bail and custodial interrogation of the petitioner is required. Anything stated herein shall not be construed as expression of opinion on the merits of the case. Petitioner, if so advised, may approach the concerned Court for regular bail. At this stage, a prayer has been made that in case petitioner surrenders and apply for regular bail, the same may be considered on the same day. This prayer can only be accepted to the limited extent. In case petitioner surrender before the trial Court on or before 27.8.2008 and if the prosecution desires the police remand and the same is granted, after the police remand is over, bail application of the petitioner shall be decided within five days. With these observations, the present petition is disposed off. (Kanwaljit Singh Ahluwalia) Judge August 21, 2008 “DK”