In the High Court of Punjab and Haryana at Chandigarh ...... Criminal Misc. No.M-36334 of 2009 ..... Date of decision:12.1.2010 Om Pal .....Petitioner v. State of Haryana .....Respondent .... Present: Mr. Tejinder Pal Singh, Advocate for the petitioner. Mr. Pawan Singh, Assistant Advocate General, Haryana for the respondent-State. ..... S.S. Saron, J. Heard learned counsel for the parties. The petitioner seeks pre-arrest bail in a case registered against him for the offences under Sections 302, 364, 323, 506, 201, 120-B and 34 IPC. The FIR in the case has been registered on the complaint of Sulekha wife of Chain Singh. It is alleged by her that in the year 1986 her husband Chain Singh had purchased land from one Amar Nath. The sale deed of the said purchase was executed in the name of Chain Singh-husband of the complainant. Ahal Singh, who is the brother-in-law (real brother of Chain Singh) of the complainant had taken possession of that land. There was a dispute regarding the said land. On account of the dispute the complainant and her family members, it is alleged, were implicated in a false criminal case. In their absence on 8.4.2008 her husband was killed by Ahal Singh. The complainant and her family members were, however, Cr. Misc. No.M-36334 of 2009 [2] acquitted in the false criminal case on 9.9.2008. Thereafter, on 21.9.2008 at about 5.00 p.m. the complainant left her son Nitesh aged 25 years at home and went to Kali Mata Mandir at Gannaur for paying obeisance. After she had gone, her son Nitesh went to his grand-mother Smt. Lila and asked her for release of their land. Thereafter, a phone call was received by the daughter of the complainant, namely, Suman at her house from aforesaid Ahal Singh. He said that they would teach them a lesson for demanding the land. He further said that if she has courage, she could save her brother. The daughter of the complainant, namely, Suman telephoned Parvesh-the other son of the complainant. Parvesh brought the complainant and the daughter of the complainant, namely, Suman on his motorcycle and reached home. Then Krishan son of Baru caught hold of the daughter of the complainant from her hair and manhandled her. In the meantime, Sandeep informed the daughter of the complainant on telephone that Rajpal and Sanjay sons of Krishan, Nawab, Sunil sons Khila Ram, Ahal Singh son of Panthi and Om Pal (petitioner) son of Khila Ram were beating her brother Nitesh in the narrow street near the shop of Prem. The complainant ran towards the street where Rajpal, Sanjay, Sunil, Nawab, Ahal Singh and Om Pal (petitioner) were beating her son. On seeing them, they took her son somewhere on their motorcycles. It was prayed that the son of the petitioner be got released from their clutches. The petitioner was found innocent during the investigation. However, Smt. Sulekha-complainant appeared as prosecution witness as PW-1 in which she stated that Rajpal and Om Pal (petitioner) ran over the neck of her son with a motorcycle. The learned Additional Sessions Judge, Panipat in terms of his order dated 10.12.2009 (Annexure-P.7) has Cr. Misc. No.M-36334 of 2009 [3] summoned the petitioner Om Pal as an additional accused in terms of Section 319 Cr.P.C. Learned counsel for the petitioner has contended that the complainant Smt. Sulekha has made improvements in her deposition while appearing in Court. It is submitted that in the FIR there is no allegation that the petitioner along with Rajpal had run his motorcycle over the neck of Nitesh. However, while appearing as PW-1 she has stated that Rajpal and Om Pal (petitioner) had run over the motorcycle over the neck of her son Nitesh (deceased). Besides, it is submitted that the medical report does not show that any crushed injury was caused on the neck of Nitesh (deceased) which would mean that the case set-up that the motorcycle was run over the neck of Nitesh Kumar (deceased) is false. It is also submitted that the statement of Smt. Sulekha recorded in Court would show that other persons have also been named as accused. A reference has also been made to the statement (Annexure-P.1) of Sandeep recorded under Section 161 Cr.P.C. wherein though Sandeep has named the other accused but has not named the petitioner. Besides, it is submitted that there are inconsistencies in the statement (Annexure-P.2) of Parvesh and supplementary statement (Annexure-P.3) of Suman, the daughter of the complainant recorded under Section 161 Cr.P.C., inasmuch as, that when they reached home they did not see Nitesh and they searched for him but they could not find him. Thereafter, it is alleged that they went to the Police station and got the case registered and the Police was also searching for Nitesh. In response, learned counsel for the State has submitted that the Additional Sessions Judge while passing the order dated 10.12.2009 (Annexure-P.7) summoning the petitioner has considered the various aspect Cr. Misc. No.M-36334 of 2009 [4] of the case and also the statement (Annexure-P.1) of Sandeep recorded under Section 161 Cr.P.C. as also the fact that Smt. Sulekha had stated that Rajpal and Om Pal ran their motorcycle over the neck of Nitesh (deceased) which was not so mentioned in the FIR. After giving my thoughtful consideration to the matter, it may be noticed that the contentions as raised by the learned counsel for the petitioner are not such which would entitle the petitioner to the concession for the grant of pre-arrest bail. It is well known that considerations governing the grant of pre-arrest bail under Section 438 Cr.P.C. are materially different from that seeking a post-arrest bail or for that matter even seeking suspension of sentence pending appeal before a higher Court. The exercise of power to grant pre-arrest bail in fact is somewhat extra-ordinary in character. In the present case, Om Pal (petitioner) has been named as an accused in the FIR which was initially registered on 22.9.2008. It has been alleged in the FIR by the complainant-Smt. Sulekha that Sandeep informed her daughter Suman on telephone that Rajpal and Sanjay sons of Krishan, Nawab, Sunil sons Khila Ram, Ahal Singh son of Panthi and Om Pal (petitioner) son of Khila Ram were beating the brother of Suman, namely, Nitesh in the narrow street near the shop of Prem. The complainant ran towards the street where Rajpal, Sanjay, Sunil, Nawab, Ahal Singh and Om Pal (petitioner) were beating the son of the complainant-Smt. Sulekha. On seeing them, they took the son of the complainant somewhere on their motorcycles. It was prayed that the son of the complainant be got released. The son of the complainant was found to have suffered six injuries. Injury No.4, mentions that a ligature mark 30 cm in length 2 cm wide was present Cr. Misc. No.M-36334 of 2009 [5] on the front of the neck, 9 cm from chin, 6 cm from the right side of mandible, 6.5 cm from the left side of mandible. In the opinion of the doctor the cause of death was due to strangulation with ligature, however, viscera was sent for chemical analysis. Learned counsel for the petitioner has contended that the ligature mark found on the person of Nitesh could not be caused by running of the motorcycle over the neck of Nitesh (deceased) as there was no crush injury. However, this aspect is not to be gone into at this stage and would more appropriately be considered by the learned trial Court after evidence has been led. The learned Additional Sessions Judge in his order dated 10.12.2009 (Annexure-P.7) while summoning the petitioner as an additional accused noticed that Rajpal and Om Pal (petitioner) ran over the neck of the son of the complainant with the motorcycle but the aforesaid details regarding role attributed to each of the accused including Om Pal (petitioner) had not been given in detail by the complainant in her statement (Ex.PA) dated 22.9.2008. However, in the said statement the complainant had categorically alleged that near the shop of Prem in the narrow street all the accused including the petitioner were thrashing Nitesh-the son of the complainant. It was stated by the complainant in her statement (Annexure- P.6) while appearing in Court that when she along with her son and daughter reached the place of incident all the accused including Om Pal (petitioner) after seeing them had taken Nitesh on the motorcycles to the `Gher' of her father-in-law where he was inflicted injuries with weapons. In the facts and circumstances, no ground for pre-arrest bail is made out keeping in view the fact that Nitesh has been found murdered and the petitioner has been summoned. However, it would be just and expedient Cr. Misc. No.M-36334 of 2009 [6] in the facts and circumstances that the learned trial Count grants interim bail to the petitioner till the application for regular bail is disposed of. Accordingly, the criminal miscellaneous petition seeking pre- arrest bail is dismissed. The petitioner shall put in appearance before the trial Court on the date fixed. However, the learned trial Court on filing of necessary application for bail shall admit the petitioner to interim bail and shall dispose of the application for regular bail as soon as possible and preferably within five days. Till such application is disposed of, the petitioner shall remain on interim bail. It is made clear that nothing observed herein shall be construed as an expression of opinion on the merits of the case and the learned trial Court shall consider the case on the basis of evidence and material as available before it for the purpose of grant of regular bail uninfluenced by any observations made herein. Copy of this order be given dasti attested under the signatures of Court Secretary of this Bench. January 12, 2010. (S.S. Saron) Judge *hsp*