IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.M.P. (M) 764 of 2008. Date of Decision: 22-8-2008. _______________________________________________________________ Rajinder Kumar Malhotra, Petitioner. Versus State of Himachal Pradesh. Respondent. Coram Hon’ble Mr.Justice S.S.Thakur ,J. Whether approved for reporting1? No. For the petitioner : Mr.R.S. Cheema, Senior Advocate with Mr. Pawan Girdhar, Ajay Kumar, Vijay Pandit and Rahul Mahajan, Advocates. For the respondent : Mr. J.S. Guleria, Law Officer. ___________________________________________________________ Surinder Singh, J, (oral) The petitioner has sought the pre-arrest bail in F.I.R. No. 162 of 2008 dated 30.6.2008 registered in Police Station (West) Shimla registered under Sections 302, 307, 109 read with Section 34 of the Indian Penal Code and also under Section 25 (54) of the Arms Act, 1959. The petitioner being the Chairman of the factory, where the incident took place is alleged to have hatched conspiracy. Precise facts of the case are that ‘Tigaksha Metallics (P) Ltd’ and ‘M/s Virgo Appliances Pvt. Ltd’ are two factories of Supermax Group located at Shogi about 14 km short of Shimla. Shri V.K. Tripathi is the Chief Executive Officer of both these factories. The petitioner is only the Whether the reporters of local newspapers are allowed to see the Judgment? Yes. Chairman of M/s “Tigaksha Metallics factory” but he does not hold any office of the Company. Some tension was already going on between the employees union and the Company because of suspension of its nine employee including complainant Khem Chand. The matter was pending in the Labour Court for approval of the dismissal of these employees. The company had also filed a civil suit in the Court of Civil Judge (Senior Division) Shimla wherein the complainant Khem Chand Kashyap and inured Pankaj Chaudhary were impleaded as defendants along with few others. On 2.8.2007, ad-interim injunction was issued by the civil Court against the defendants restraining them from gathering, holding dharnas, assembling, staging demonstrations, shouting slogans, holding meetings, throwing stones, causing nuisance to the plaintiff and its non- striking employees, interfering in any manner with the ingress and egress of employees, visitors and material within the premises or outside the premises of the applicant company in Plot No. 49, 102, 103, Industrial Area, Shogi District Shimla H.P. within a range of 500 meters till further orders. The interim injunction was pasted by the Company on its Notice Board and they informed the Police about the meeting which was to be held by the protesting workers on 30.6.2008. A small contingent of Police headed by Sub Inspector Mathura Dass of Police Station, Boileauganj was deputed and they reached the “Virgo Appliances” factory premises around 2.00 P.M. It is alleged that around 300 employees including nine suspended employees gathered at the gate of the said factory around 3.00 P.M, which was a time for changing the next shift in the factory and the main gate was opened for egress and ingress of the employees/workers, but the Security Guards stopped the entry of the protesting employees inside the gate including the complainant. However, about 20 of them were able to get inside the main gate into the factory premises and they protested against the behaviour of the security guards. It is alleged that the security guards opened the fire, consequently Ravi Kant, Ashok Kumar Pankaj, Khem Chand (complainant) and Amarjit Singh sustained the bullet injuries. Amarjit Singh was serious. He was removed to the Hospital where he succumbed to his injuries. First Information Report was lodged by Kham Chand. A case was registered under the aforesaid sections against five security guards and two others namely, Vijay Kumar Tripathi and Girishwar Tiwari. Allegation against Vijay Kumar Tripathi, C.E.O. was that the security guards of the Company were instigated by him to open the fire on the protesting employees. Whereas Shri Tripathi was in another factory “M/s Tigaksha Mettalics” 2 km away from the place the incident took place. However, he along with the security guards was arrested. Weapons were recovered from the assailants which were sent for examination to the Forensic Science Laboratory. Vide separate detailed order passed in Cr.M.P. (M) No. 744 of 2008, Shri V.K. Tripathi, the Chief Executive Officer was enlarged on bail by this Court on 25.7.2008. The allegations against the petitioner herein are that the complainant and the injured persons, namely, Ravi Kant, Pankaj and Sunil have alleged in their statements recorded by the Police that they believe that the petitioner and his co-accused V.K. Tripathi C.E.O. Surprisingly, there is nothing on record to show how the petitioner has instigated the guards of the factory when he was neither present in the factor or even for that matter in the State of Himachal Pradesh during the entire month of June or even in the preceding month. Admittedly, the petitioner has been residing in Mumbai. He is aged about 70 years. He is stated to be a heart patient. Shri R.S. Cheema, learned Senior Advocate for the petitioner submits that the petitioner is neither an office-bearer of Super Max group of Companies nor holding any position in any capacity in the said Company. For all intents and purposes, he is not required to look after and supervise any of the manufacturing units including the manufacturing unit at Shogi and to take any decision. He did not figure in the entire hierarchy of the company which is responsible for the day-to-day functioning of the manufacturing unit. He further submitted that due to cardiac problem, he was unable to visit Shimla for interrogation and the Investigating Officer was duly informed. According to him, the Investigating agency has failed to link him as a conspirator or an instigator, whereas due to ill, he is struggling for his life and was hospitalized for the heart ailment and is now under the constant medical supervision with respect to a possible bye-pass surgery. In addition, he is stated to have a respiratory problem and is unable to travel to the high altitude. These facts have been mentioned in Cr.M.P. No. 523 of 2008 and is duly supported by the affidavit. The learned counsel further submitted that even despite all these adversities, the petitioner is ready and willing to join the investigation but instead of visiting Shimla because of ill-health and prayed that he would make himself available at Delhi in case his cooperation in the investigation is required but it would be difficult for him under the medical advice to visit Shimla. Shri J.S. Guleria, learned Law Officer has opposed the bail application and according to him, the involvement of the petitioner in the alleged offence is apprehended by the injured persons. Therefore, the petitioner has no ground for the pre-arrest bail. I have considered the rival contentions of the parties and have also perused the investigation file which contained the statements of the witnesses. In their statements, the injured witnesses have only presumed the role of the petitioner in the said incident and nothing more than that. Therefore, in the aforesaid background, without commenting upon the merits and de-merits of the case, there is prima facie nothing against the petitioner to link him as an abettor or a conspirator. Suffice it to say, he has a case for pre-arrest bail. Accordingly, in the event of arrest of the petitioner, the interim bail granted on 25.7.2008 is hereby confirmed on the same conditions subject to the following additional condition no. (iv) :- (iv) The petitioner shall inform the Investigating Officer regarding his availability with complete address at Delhi for the purpose of interrogation as and when he receives any order from the Investigating Officer under Section 160 of the Code of Criminal Procedure for the purpose of interrogation. Any observation made herein above is strictly for the purpose of deciding the instant petition and it shall be construed to have any bearing on the merits of the case. The application is accordingly disposed of. Dasti copy. (Surinder Singh) Judge. August 22, 2008. (bm)