IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.M.P. (M) No. 744 of 2008. Date of Decision: 25-7-2008. _______________________________________________________________ V.K. Tripathi Petitioner. Versus State of Himachal Pradesh. Respondent. Coram Hon’ble Mr.Justice S.S.Thakur ,J. Whether approved for reporting1? Yes. For the petitioner : Mr. R.S. Cheema,Sr. Advocate with M/s. Pawan Gurdev, Ajay Kumar, Vijay Pandit and Rahul Mahajan, Advocates. For the respondent : Mr. J.S. Guleria, Law Officer. ___________________________________________________________ Surinder Singh , J. The petitioner has been arrested on 1-7-2008 in FIR No. 162 of 2008 registered on 30.6.2008 in Police Station, Dhalli under Sections 302, 307, 109 and 34 of the Indian Penal Code read with Section 25 of the Arms Act . The petitioner is Chief Executive Officer of ‘Tigaksha Metallics (P) Ltd’ and of M/s ‘Virgo Appliances Pvt. Ltd.’ Shogi. He is alleged to have abetted the alleged crime. Background of the case is that, some tension was already going on between the employees Union and the Company because of suspension of nine employees, including complainant Khem Chand. The matter was pending in the Labour Court for approval of the dismissal of these employees. Earlier the company Whether reporters of the Local papers are allowed to see the judgment? Yes. had filed a civil suit in the Court of Civil Judge (Senior Division) Shimla wherein the complainant Khem Chand Kashyap and the injured Pankaj Chaudhary were arraigned as defendants amongst others. On 2.8.2007, the civil court had issued ex-parte injunction against the defendants restraining them from gathering, holding Dharnas, assembling, staging-demonstrations, shouting slogans, holding meetings, throwing-stones, causing nuisance to the applicant 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 Nos 49, 102, 103, Industrial Area Shogi District Shimla H.P. within a range of 500 meters till further orders. The Company had pasted the interim orders on the notice board and also informed the police about the meeting which was to be held by them on 30.6.2008. A police party headed by S.I. Mathura Dass of Police Station, Boileauganj was deputed and they reached the factory premises at 2.P.M. It is alleged that about 300 employees including nine suspended employees, gathered at the gate of factory of M/s Virgo Appliances (P) Limited at 3.P.M. which was time for change over to next shift in the factory. Some workers were coming out and some were going in the factory premises through the gate but the security guard stopped the entry of the protesting employees including the complainant, and the injured/deceased employee(s). However, they managed to get in, along with 15/20 persons and others were outside the gate. When the workers objected to the untoward behaviour of the security guards, they opened the fire with the result, Ravi Kant, Ashok Kumar, Pankaj, Khem Chand and Amarjit Singh sustained the bullet injuries. Since the condition of Amarjit Singh was precarious, he was immediately removed to the Hospital where he died. On the statement of Khem Chand, an FIR was lodged under the aforesaid sections against the five security guards and two others Vinay Kumar Tiwari and Girishwar Tiwari. The complainant alleged that the security guards of the company were instigated by the petitioner herein to open the fire. During the investigation, three pistols and two revolvers along with empty and live cartridges were recovered from the possession of accused Anand Parkash, Miritunjay Pardhan, Akhilesh Kumar, Kanhaya Ram and Brijesh Kumar security guards. They were arrested. Vijay Kumar Tiwari and Girishwar Tiwari were also arrested and dandas were recorded from them. Pistol/revolvers were sent to the Forensic Science laboratory for the opinion of Ballistic Expert. The notice of this petition was given to the learned Advocate General. Mr. J.S. Guleria, learned Law Officer appeared for the State and he filed the report and also produced the investigation file. Heard. The ld. Law Officer has objected to the grant of bail to the petitioner on the ground that the security guards were under the control of the petitioner, though he was not present in the factory premises at that time where the alleged incident had taken place, but he was present in another factory. M/s Trigaksha Metallics at a distance of 2 km, of which he is also the Chief Executive Officer. To connect him as an abettor of crime, the details of his telephone calls were taken into possession showing that at 2.30 P.M. he had contacted one of the security guard. Shri Guleria also referred the statements of the complainant and other witnesses wherein they also expressed their suspicion that petitioner might have instigated the security personnels as they were under his direct control. It is also argued by him that in case the petition is enlarged on bail, he shall not cooperate with the investigation of the case and may even abscond. Shri R.S. Cheema, ld. Counsel for the petitioner has countered the above arguments by making the submissions that there is also another side of the coin other than submitted by the learned Law Officer. According to him, the company had suspended its nine employees and matter is pending before the Labour Court. The employees Union started causing interference into the peaceful working of the factory and its officers had been informing the higher authorities and administration from time to time, even the police was deputed in the premises. At 3 P.M. on the day of alleged incident in the presence of police, a mob of about 300/500 persons gathered there and immediately thereafter within ten minutes, they started causing damage to the factory property in the immediate presence of the Police and the ammonia gas plant nearby, posed danger. To avoid any major tragedy, the security guards to protect the property and also themselves might have taken the extreme step but in the entire episode which took place within ten minutes, the petitioner figured no where, he was not present there. The mob did not give any chance to contact him by the security people nor he could establish any contact. The call made by the petitioner at 2.30 P.M. has no relevance with the incident when the mob had gathered there at 3 P.M. His role as an abettor as alleged is dubious, therefore there is no reasonable ground even to presume that he was an abettor. I have given my thoughtful consideration the rival contentions of the parties and have perused the case file. As a matter of fact at this stage, the evidence collected so far is not to be sifted at this stage as on merits. However, on the perusal of the investigation file, and the submissions made by the parties, it is clear that petitioner V.K. Tripathi was not present at the place of occurrence at the relevant time. He is sought to be connected only for abetting the offence, on the basis of the telephone call made by him at 2.30 P.M. and also on suspicion that he being the Chief Executive Officer , the security guards were under his control and they could not have opened the fire unless so directed/ordered by him. While considering the question of granting bail in an heinous offence like the present one, if prima facie a slightest link of the accused is established, the liberty of bail cannot be granted. However, without commenting upon the merits or demerits of the case and keeping in view the above circumstances put-forth against the petitioner to link him as an abettor, suffice it to say that he has a case for bail. However, it shall be ensured by imposing the appropriate conditions that the investigation shall not hamper and the petitioner is also available for interrogation and to face the trial. Accordingly, I allow the present petition. The petitioner is ordered to be enlarged on bail on his furnishing bail bonds in the sum of rupees one lac with one surety in the like amount to the satisfaction of learned Chief Judicial Magistrate, Shimla and this bail shall be subject to the further conditions: i) The petitioner shall make himself available for interrogation by the Police Officer as and when required; ii) That the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of this case so as to dissuade him from disclosing such facts to the Court or to the Police Officer; iii) The petitioner shall not leave India without the previous permission of this Court. He shall surrender the pass-port, if any, to the Investigating Officer. iv) The petitioner shall not mis-use liberty of bail in any manner. v) He shall make every endeavour to restore the work and peace in the factory to the welfare of the workers. Needless to say that if the petitioner would commit the breach of any of the conditions above, the liberty of bail shall be cancelled. The matter is accordingly disposed of. Copy Dasti. (Surinder Singh) Judge. July 25,2008. (BM)