Crl. Misc. No. M-11493 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-11493 of 2009 Date of decision: 30.4.2009 Trinayan Saikia ….. Petitioner versus State of Haryana ….. Respondents Present: Mr. R.S. Cheema, Senior Advocate with Mr. J.S. Mehndiratta, Advocate for the petitioner. Mr. Vikas Chaudhary, AAG, Haryana. Mr. Baldev Singh, Senior Advocate with Mr. Deepinder Singh, Advocate for the complainant. *** S.S. SARON, J. Heard counsel for the parties. This petition has been filed under Section 439 of the Code of Criminal Procedure (“CrPC” – for short) for grant of regular bail to the petitioner in a case that has been registered against him for the offences under Sections 338, 201, 304-A/34 Indian Penal Code (“IPC” – for short) at Police Station DLF, Phase-II, Gurgaon. The FIR is a result of an extremely unfortunate incident in which the son of the complainant got stuck in a self-operated lift on 7.4.2009. The complainant Shashank Mohan Sharma has alleged that his younger son Sh. Nishant Mohan Sharma had recently joined M/s Sapiant Corp. Ltd. situated at DLF as a contract employee. He had gone to his office for his work at about 9.30 a.m. The complainant then received a telephonic call that his son Nishant Mohan Sharma had been injured being stuck in a lift at level-1 of the DLF building. The persons of the Crl. Misc. No. M-11493 of 2009 -2- Company had taken him to ARTEMES Hospital. The complainant along with his elder son Prashant Mohan Sharma reached the hospital. It is alleged that the accident had taken place due to the negligence and irresponsible acts of M/s DLF Services Ltd. The Managing Director and other office bearers of M/s DLF including Harish Mehta, DGM, Col. Gupta, Security In-charge and Col. Trinayan Saikia, Security Manager (petitioner) were the employees of the said Company and they had not made any arrangement to meet any such emergency in the lift. The sudden opening of the lift even in the presence of the lift operator and the security guards of the DLF not only exposes the negligence on the part of the aforesaid Company but the abovesaid officers as well who knew that such an accident could prove fatal to life. Besides, the DLF did not take any action. The son of the complainant had been struggling for life in the lift being stuck for 20-25 minutes and had he got timely help, he would not have been in such serious condition, as he was. The aforesaid officers at the instance of their Managing Director and the Director, it is alleged, had tampered with the footage of the Close Circuit Television Camera (CCTV camera) installed in the basement. They tried to destroy the evidence from near the lift. It was requested that legal action be taken. The son of the petitioner thereafter died on 10.4.2009. The case was initially registered for the offences under Sections 338 and 201/34 IPC. However, on account of the death, the offence under Section 304-A IPC was added. The petitioner in view of the case that had been registered surrendered in the Court of Judicial Magistrate Ist Class on 15.4.2009. ASI Shamsher Singh, Police Station DLF, Phase-II, Gurgaon submitted an application dated 15.4.2009 (Annexure P5) in this regard and requested for grant of permission to join the petitioner in the investigation of the case. The learned Judicial Magistrate, Gurgaon on the same day i.e. 15.4.2009 (Annexure P6) allowed the application and directed the prosecution to produce the accused (petitioner) after sometime. The ASI/SHO, Police Station DLF, Phase-II, Gurgaon then submitted an application dated 15.4.2009 (Annexure P7) for the grant of 14 days’ judicial remand. The learned Magistrate on the said application Crl. Misc. No. M-11493 of 2009 -3- passed the order dated 15.4.2009 (Annexure P8). It was held that the case is covered under Section 299 IPC punishable under Section 304 IPC and not under Section 304- A IPC. It was further held that the offence under Section 304 IPC being exclusively triable by the Court of Sessions, the application of the petitioner was to be dismissed. Accordingly, the petitioner was remanded to judicial custody till 29.4.2009. The petitioner thereafter filed an application for the grant of regular bail before the Sessions Judge, Gurgaon and the learned Additional Sessions Judge vide order dated 25.4.2009 dismissed the same. It was inter alia observed that it was yet to be ascertained by the investigating officer whether the offence under Section 304 Part-II or Section 304 A IPC is made out against the accused (petitioner). The petitioner thereafter has filed the present petition. At the time of preliminary hearing, it was contended by Mr. R.S. Cheema, learned Senior Counsel appearing for the petitioner that the offence under Section 304 Part-II IPC had not been registered nor made out against the petitioner. In the circumstances, the offence being bailable, the arrest and continued detention of the petitioner would be illegal in view of the fact that the offences are bailable. Mr. R.S. Cheema, Senior Advocate, learned counsel appearing for the petitioner has submitted that an act of negligence only has been alleged by the complainant from the very beginning and at all stages it is a case of negligence. Therefore, the offence under Section 304-A IPC on the allegations as made is only made out. It is submitted that in case the offence under Section 304 IPC is added by the prosecution at some later stage, the petitioner would avail his remedies in accordance with law. Mr. Vikas Chaudhary, AAG, Haryana learned State counsel has submitted that the police is investigating the case and for the present, the offence under Section 304-A IPC is only made out. It is also submitted that the police would carry out independent investigation after calling for the contract between the Company that had installed the lift and the DLF. It shall also examine the CCTV Crl. Misc. No. M-11493 of 2009 -4- Camera footage as to whether the same has been tampered with and in case the offence under Section 304 IPC or any other offence is made out, the same would be duly added. Mr. Baldev Singh, Senior Advocate learned counsel appearing for the complainant has submitted that the learned Magistrate has passed a reasoned order on 15.4.2009 (Annexure P8) while declining bail. It is submitted that from the facts and circumstances of the case, the offence under Section 304 IPC is clearly made out and the police is trying to help the petitioner and other accused. Therefore, the petitioner is not entitled to the concession of bail. I have given my thoughtful consideration to the contentions of the learned counsel appearing for the parties and with their assistance, gone through the records. As per the prosecution case, the offences which are at present attributed to the petitioner are bailable offences. According to the prosecution it is yet to be ascertained as to whether the offence under Section 304 IPC is made out. Insofar as the observations of the learned Judicial Magistrate while passing the order dated 15.4.2009 (Annexure P8) are concerned, the same, in my view, are only for the purpose as to whether police remand was liable to be granted or the petitioner was to be released on bail. The same, at this stage, can not be said, would mean that the offence under Section 304 IPC is made out. This would be a factor to be taken into consideration by the investigating authorities during the course of investigation. Thereafter, it is to be considered by the Court concerned at the time of consideration of framing of charge. At this stage, it would be too pre-mature to hold that the offence under Section 304 IPC is made out. It is well known that the field of investigation is the sole domain of the Police and the Courts normally do not interfere with the same, unless, it is shown that the investigating authorities have transgressed the circumscribed limits of prescribed jurisdiction and acted illegally or in disregard to known procedure. In such an event also, the aggrieved person has his remedies of approaching the Ilaqa Magistrate as held by the Supreme Court in State of Haryana Crl. Misc. No. M-11493 of 2009 -5- v. Ch. Bhajan Lal AIR 1992 SC 604 and Sakiri Vasu v. State of UP and others, 2008 (1) RCR (Crl.) 392. In case the prosecution at some later stage does add the offence under Section 304 IPC holding that the same to be made out, the necessary consequences that entail would follow. In the present case, the offences being bailable, the petitioner is entitled to the concession of bail. Accordingly, the Crl. Misc. petition is allowed. The petitioner on his furnishing personal bond and surety to the satisfaction of the learned Chief Judicial Magistrate, Gurgaon shall be admitted to bail. It is, however, made clear that nothing stated herein shall be cosntrued as an expression of opinion on the merits of the case and it is only for the purpose of disposing of the petition for bail. The investigating authorities and the learned trial Court shall consider the facts and circumstances of the case on the basis of evidence and material independently as adduced before it. Copy of the order be given dasti on payment of usual charges. (S.S. SARON) JUDGE April 30, 2009 amit