Crl.Misc.No.M-26666 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Misc.No. M-26666 of 2009 Date of decision:21.10.2009 Prem Singh Bhangu ... Petitioner versus Union Territory of Chandigarh Administration ... Respondent CORAM:HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.R.S.Cheema, Sr.Advocate, with Mr.J.S.Toor, Advocate, for the petitioner. Mr.D.D.Sharma, Advocate, for the respondent. ... JORA SINGH, J. Prem Singh Bhangu filed this petition under Section 438 Cr.P.C. for grant of anticipatory bail in case FIR No.282 dated 8.9.2009 under Sections 147/148/149/186/188/341/323/332/353/379/427/389/307 IPC and Section 3 of Prevention of Damage to Public Property Act, 1984, registered at Police Station Sector 17, Chandigarh. Prosecution story, in brief, is that on 8.9.2009, Inspector Partap Singh, SHO, Police Station Mani Majra, UT, Chandigarh, along with other police officials was present near the Cricket Stadium Chowk, Sector 17, Chandigarh, to maintain law and order, because BKU workers and Electricity workers were going to hold a rally. Leaders of BKU, namely, Joginder Singh Ugrahan, State President, Kamalpreet Pannu, Sukhdev Singh Khokri Kalan along with 10/12 thousand workers were raising slogans against the Punjab Government. The demonstrators while raising slogans against Punjab Government, had gathered near 16/23 dividing road and later on, they started insisting to proceed towards Matka Chowk and Crl.Misc.No.M-26666 of 2009 2 tried to break the barricades created by the police. Shri Ashwani Kumar, Duty Magistrate, and Shri Madhur Verma, SP, City and Crime, tried to persuade the crowd not to disobey the order under Section 144 Cr.P.C. Joginder Singh Ugrahan, State President, Kamalpreet Singh Pannu, Darbara Singh Chhajla, Prem Singh Bhangu, Hardev Singh, Amolakh Singh, Lakshman Singh, Janak Singh Bhadal and other leaders were instigating the crowd to disobey the order under Section 144 Cr.P.C. by saying that they are to gherao the residence of C.M., Punjab. The officials made an effort to make them understand but all in vain. The crowd went out of control on the instigation of the leaders and if any official tried to stop them, then to eliminate him. After instigating by the leaders, the crowd started hurling stones on the police party. Barricades created by the police were also broken and to control the crowd, water cannon and tear gas were used but the crowd went on proceeding towards the Chief Minister's residence, while hurling stones. Inspector Har Sahai Sharma requested Joginder Singh Ugrahan not to instigate the crowd to proceed further. Sukhdev Singh Kokri was summoned by Joginder Singh Ugrahan and directed him to eliminate Inspector Har Sahai Sharma by hurling stones. Sukhdev Singh Kokri by picking up a stone had struck the same against the head of Inspector Har Sahai Sharma, due to which Inspector Har Sahai Sharma got injuries and fell down on the ground. Uncontrolled crowd had damaged Government and private vehicles, including scooters, motorcycles etc. Some of the vehicles were also set on fire. Kamal Preet Pannu was requested not to instigate the crowd, but he had summoned Jhanda Singh, Shingara Singh, Ram Singh etc., who had scuffled with the complainant. The complainant was thrown on the ground and then gave legs and fists Crl.Misc.No.M-26666 of 2009 3 blows. Uniform of the complainant was also torn. Shri Madhur Verma, SP, City & Crime, Shri Jagbir Singh, DSP, Central, Shri Ashwani Kumar, DSP, Inspector Har Sahai, Inspector Nitya Nand and number of other police officials while on duty were injured. Joginder Singh Pannu along with other leaders of the union had common intention by instigating the crowd to damage the Government and non-government property. The officials were restrained to perform their official duty. Learned counsel for the petitioner argued that the petitioner was present in the rally organized by 5 different unions against the privatization of the Punjab State Electricity Board. Petitioner was one of the speakers on the stage and explained the legal and economic consequences of unbundling of PSEB. The petitioner is practicing for the last 30 years. The Media by twisting the real facts tried to mislead that the unions were unruly terrorists and undisciplined to the highest level. Nobody tried to understand why 5 different unions came to Chandigarh to demonstrate and why near about 10 thousand farmers committed suicide. The petitioner was not armed. Vague allegations against the petitioner. The petitioner was a political activist and had not instigated the crowd to damage public or private property. After addressing the gathering, the petitioner had left the spot. Number of persons from different parts of State of Punjab came to Chandigarh to protest against privatization of PSEB. The crowd had no common object to cause injuries to the police officials. Nothing is to be recovered from the petitioner. Petitioner is ready to join investigation. Reliance has been placed on 2007(2) RCR (Crl.) 477, Mummidi Hemadri and others vs. State of Andhra Pradesh, and 2008(1) RCR (Crl.) 793, Dharmender and another vs. State of Haryana. Crl.Misc.No.M-26666 of 2009 4 Learned State counsel argued that daily there is a call by one union or the other to hold rally against the Government. While protesting against the Government, number of official vehicles, including private vehicles, are burnt. Photographs and cuttings of the news papers produced and the same are taken on record. Photographs and cuttings of news from different news papers show that police was not at fault. Police was requesting not to disobey the order under Section 144 Cr.P.C. There was a call by the unions. Number of persons from different parts of State of Punjab came to Chandigarh. Police officials from adjoining cities were also summoned to maintain law and order. So, the police officials were not in a position to name or identify the assailants. There was no permission to hold the rally. Specific site is reserved to hold a rally with the permission of the Government. In the present case, no permission was granted to the unions to assemble near the Cricket Stadium Chowk. No question of speech from the stage. Photographs show that liquor was consumed by the crowd. The crowd was also armed. Police officials were seen while requesting the crowd not to disobey the order. Petitioner was named in the FIR. Custodial interrogation of the petitioner is required to recover the weapon and to know as to who are the co-accused, who had instigated the crowd to damage the vehicles and cause injuries to the police officials. Injuries on the person of police officials, i.e., on vital parts, cannot be self suffered or self inflicted. In case the petitioner is ordered to be released on bail, then Government would not be in a position to control the crowd to hold rallies. Daily crowd is to assemble to gherao the residence of Chief Minister. One day, crowd is to assemble to gherao the Secretariat or the High Court. If no check, then there is a possibility of damage to vehicles, buildings etc. Instead of Crl.Misc.No.M-26666 of 2009 5 instigating the crowd to disobey the order, duty of the leaders is to direct the members not to take liquor or bring weapons. Without instigation of the leaders, no question of damage to public or private property. I have heard learned counsel for the petitioner and UT, Chandigarh, and also gone through the file. At the time of arguments, learned counsel for UT produced number of photographs along with cuttings of different news papers. After going through the photographs and cuttings, one can imagine how private/Government vehicles were damaged and burnt. Police officials are visible in the photographs pleading the public not to damage the property. Daily there is a call by the leaders to gherao the Secretariat, residences of Chief Minister, Governor or officers of the State. When there is a rally, then public/private property is damaged. Number of vehicles are burnt. Police force is summoned from different districts to maintain law and order. When crowd is from different parts of the State, then police officials cannot give names of the assailants. When there are 10 or 15 thousand people, causing damage to public and private property, then no one can state who had instigated the crowd and who had damaged the public or private property. Specific site is earmarked by the Administration to hold rallies with the permission of competent authority, but in the present case, there was no permission to any union to assemble near the Cricket Stadium Chowk. Order under Section 144 Cr.P.C. was passed. Despite the order under Section 144 Cr.P.C., the crowd was instigated to gherao the residence of Chief Minister. Police Party with the help of barricades was requesting the crowd not to proceed towards the residence of Chief Minister, but the Crl.Misc.No.M-26666 of 2009 6 crowd despite the barricades by the police insisted to proceed towards Chief Minister’s residence. If the crowd is allowed to proceed towards the residence of Chief Minister, particularly when there is an order under Section 144 Cr.P.C. and to restrain the crowd, there were barricades on the road, then for what purpose the police is deployed. Police force is deployed to maintain law and order. When the crowd is not obeying the order despite the use of water cannon and tear gas, then police is bound to use mild lathi charge. Today there is a call by the union to gherao the Chief Minister’s residence. Similarly tomorrow there will be a call to gherao the Secretariat or High Court. If the force is not to control the crowd, then there is possibility of damage to the Government property/private property, including government/private vehicles. After damage to the property and vehicles, who is responsible. Photographs shows that number of vehicles were burnt/damaged. Cuttings of different news papers show that liquor was consumed by the crowd. Number of bottles were recovered from the spot. Vehicles were found over turned. Police officials were seen while pleading the crowd not to cause injuries. Workers of unions were found armed with weapons. Relief under Section 438 Cr.P.C. is discretionary and the discretion is to be used judiciously and sparingly. Custodial interrogation of the petitioner is required to recover the weapon of offence and to know who are the instigators. In Mummidi Hemadri's case (supra), Hon’ble Supreme Court held that mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141 IPC- Crl.Misc.No.M-26666 of 2009 7 Where common object of an un-lawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149 IPC. But in the present case, there was a call to gherao the residence of Chief Minister. Crowd was armed. Liquor was consumed and this fact is clear from the photographs. Investigation is going on. After evidence, the Court is to see whether the petitioner had no common object. Petitioner was present and had addressed the crowd. If the petitioner had not instigated the crowd to disobey the order, then what was the necessity to bring weapons and consume liquor. Common object was to gherao the Chief Minister’s residence and to achieve the object when the police force was restraining the crowd not to proceed towards the residence of Chief Minister, then different vehicles were set on fire. About 48 police officials were injured. While disposing of bail application without evidence, the Court is not expected to opine that no offence punishable under Sections 149 and 141 IPC is made out. In case the Court opines that no offence punishable under Sections 149 and 141 IPC is made out, then the order is to influence the investigation of the case. In Dharmender's case (supra), Hon’ble High Court held that offence under Sections 307/148/427 IPC- Petitioners not attributed any specific role in the occurrence. Petition under Section 438 Cr.P.C. accepted. But the above cited authority is also not helpful to the petitioner because as per the facts of above cited authority, as per order dated 24.7.2007, the petitioners had joined investigation. Secondly, no specific role was attributed to the petitioners. But in the present case, petitioner was named in the FIR. Allegation against the petitioner is that he had instigated the crowd to eliminate the police party, if crowd is restrained to proceed Crl.Misc.No.M-26666 of 2009 8 towards the residence of Chief Minister. Learned counsel for the petitioner also cited AIR 1980 SC 1632, Gurbaksh Singh Sibbia etc. vs. State of Punjab in support of his contention. But the facts of the present case are different from the facts of above cited authority. The petitioner is practicing for the last 30 years as per the allegation of the petitioner, but there was no permission to hold rally. No question of address from the stage. It is very easy for the petitioner to say that after address, he had left the rally. As discussed earlier, relief under Section 438 Cr.P.C. is discretionary and the discretion is to be exercised sparingly keeping in view the nature of offence and position of victim vis-à-vis the accused. In the light of above discussion, petition being without merit is dismissed. 21.10.2009 ( JORA SINGH ) pk JUDGE