CRM-M-22694-2011 [ 1 ] :::::::: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-22694-2011 Date of decision:26.11.2011 Deepak Kumar alias Deepa and another ...Petitioners Versus State of Haryana ...Respondent CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. HPS Ishar, Advocate, for the petitioners. Mr. Sagar Deswal, AAG, Haryana. ***** RAKESH KUMAR JAIN, J. The petitioners have prayed for pre-arrest bail in a case registered vide FIR No.147 dated 07.09.2009, under Sections 148, 149, 323, 325, 302 IPC at Police Station Ladwa, District Kurukshetra. Rajesh Kumar son of Pritam Singh (since deceased) lodged the FIR in which he had alleged that on 06.10.2009 at about 11.00 p.m., when he alongwith his father and brother-in-law Karan Singh were present at their house, Om Parkash alias Omi, Jaipal, Kala, Boni alias Amarjeet came there and asked Pritam Singh (since deceased) to accompany them to Ram Dass Dharamsala to resolve their old dispute. The complainant and his brother-in-law started taking their meals but after 10 minutes, they heard the cries of his father, upon which the complainant and his brother-in-law Karan Singh came out of their house and saw that Om Parkash alias Omi armed with a Gandasi, Jaipal armed with cutter Gandasa, Kala armed with sword, Bhura alias Parveen armed with Gandasi, Dhakli armed with Gandasi and 3 women were giving injuries with their respective weapons to Pritam Singh who was lying on CRM-M-22694-2011 [ 2 ] :::::::: the ground. Om Parkash alias Omi gave gandasi blow on the head of his brother-in-law Karan Singh who lost his consciousness and fell on the ground. In the meanwhile, Sanjiv alias Sodhi came at the spot upon which the accused ran away with their respective weapons. Thereafter, the complainant alongwith Sanjiv alias Sodhi and some neighbours got his father Pritam Singh and brother-in-law Karan Singh admitted in the Government Hospital, Ladwa. Thereafter, they were shifted to Government Hospital, Kurukshetra and then Pritam Singh was taken to GMCH, Sector-32, Chandigarh where he died just after arrival. It is alleged that Bhura alias Parveen, Jonney and Satish Kumar, resident of Ravidass Basti, Ladwa were arrested in a dacoity case in Uttar Pradesh who involved his father Pritam Singh as purchaser of the dacoity items, but lateron his father was found to be innocent by the Uttar Pradesh police. Due to this enmity, 4-5 days earlier, his father, Sanjiv alias Sodhi and Bhura had an oral altercation. Learned counsel for the petitioners has submitted that the statements of Rajesh Kumar (complainant) and other eye-witness Sanjiv alias Sodhi were recorded but they did not name the petitioners. However, on 11.09.2009, after 4 days of the occurrence, Karan Singh (injured) recorded his statement in which he had named the present petitioners and two more persons, namely, Ram Chander alias Nanha and Maya Devi wife of Jaipal. The challan was presented on 04.12.2009 against Jaipal, Shishpal alias Kala, Amarjeet and Parveen Kumar. A separate challan was filed against Ajay alias Dhakli who was a juvenile but no challan was presented against the petitioners. However, it was stated in the challan that investigation is pending qua the involvement of other accused and in case any evidence is found against them, then supplementary challan shall be presented. He submits that at that stage, the Investigating Officer did not find the statement of Karan Singh recorded under Section 161 Cr.P.C., in which the petitioners were named, worth proceeding for the purpose of presentation of challan against the petitioners. On 02.02.2010, Ram Chander alias Nanha accused named by Karan Singh was arrested and a supplementary challan was presented against him, whereas in the trial going on before the Juvenile Justice Board, Sanjiv alias Sodhi had appeared as PW6 who CRM-M-22694-2011 [ 3 ] :::::::: only named Jaipal, Om Parkash, Shish Pal and Ajay alias Dhakli. He further submits that Sanjiv alias Sodhi is the only independent witness in this case. He further submitted that the prosecution evidence is going on and till 04.10.2011, 25 witnesses have already been examined but the petitioners were not declared proclaimed offenders. It is submitted that when the police started raiding house of the petitioners, they had filed anticipatory bail applications before the learned Court below in which reply was filed by the prosecution alleging therein that “accused Deepak Kumar alias Deepa S/o Babu Ram, caste Harijan, resident of Ravi Dass Colony, Ladwa and Amit Kumar @ Meeta son of Parkash, caste Harijan, resident of Ravi Dass Colony, Ladwas gave injuries to Karan Singh S/o Dharampal, caste Harijan, resident of Aurangabad, District Yamuna Nagar with Saria. The Saria's have to be recovered from them”. The learned Court below dismissed their anticipatory bail application on the ground that investigation is going on and the names of the petitioners have been taken by injured Karan Singh. Learned counsel for the petitioners has further submitted that in his statement recorded under Section 161 Cr.P.C., Rajesh Kumar had alleged that it was Om Parkash who had caused injuries to Karan Singh with a gandasi. After notice of motion, an affidavit of SI Randhir Singh dated 13.09.2011 has been filed in which he has alleged that “it is further humbly submitted that as per statement of Karan Singh, accused Amit @ Mitta, Deepak @ Deepa and Ram Chander @ Nanha did not cause injury to him. It seems that SI Abhey Ram mentioned inadvertently that these accused caused injuries to Karan Singh with iron rods”. Another affidavit of SI Randhir Singh dated 25.10.2011 has been filed in order to show that the efforts have been made for the purpose of arrest of the petitioners by taking warrants, but since they were absconding and their whereabouts could not be ascertained, therefore, they could not be arrested. He further mentioned in his affidavit that on 05.10.2011, that the Illaqa Magistrate has declared the petitioners to be proclaimed offenders. Another affidavit of the same Officer dated 03.11.2011 has also been filed in which it has been averred that the challan was prepared on 30.11.2010 and presented on 04.12.2010 in which it was mentioned that CRM-M-22694-2011 [ 4 ] :::::::: warrants of the petitioners have been got issued but despite repeated efforts, their whereabouts could not be made known to the Investigating Officer. However, in this affidavit, he has clarified that the application for declaring the petitioners to be proclaimed offenders is still pending and is not decided. I have heard both the learned counsel for the parties and perused the record with their able assistance. In this case, the person who did not suffer any injury was Rajesh Kumar (complainant) who already knew the assailants but did not name the petitioners. The other eye-witness Sanjiv alias Sodhi also did not name them when he appeared as PW6 in the trial before the Juvenile Justice Board. ASI Malkiat Singh, who appeared as PW13, also did not utter a word against the petitioners, whereas, while opposing the bail application, wrong facts were brought before the Court that the petitioners had caused injuries to Karan Singh which has been accepted in the affidavit dated 13.09.2011 filed by SI Randhir Singh. Thereafter, in the affidavit dated 25.10.2011,again a wrong fact was alleged that the prosecution had moved an application on 05.10.2011 with a prayer to declare the petitioners to be proclaimed offenders and the said application has been accepted by the learned Illaqa Magistrate on the same day, but this fact was clarified in the affidavit of SI Randhir Singh dated 03.11.2011 in which he had said that the application is still pending and not decided. The question is as to why the prosecution is trying to mislead the Court in this case? After hearing both the learned counsel for the parties and keeping in view the facts and circumstances of this case, the present petition is hereby allowed and the petitioners are directed to join the investigation. In the event of their arrest, they shall be released on bail by the arresting officer on their furnishing bail bonds to his satisfaction. They would also keep on joining the investigation as and when required by the Investigating Officer. They shall also abide by the provisions of the Section 438(2) of the Cr.P.C. November 26, 2011 (RAKESH KUMAR JAIN) vinod* JUDGE