IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.M-28623 of 2009 Date of decision:18th December, 2009 Jeet Singh .....Petitioner Versus State of Punjab ....Respondent. Present: Mr. Gaurav Chopra, Advocate for the petitioner. Mr. Sartaj Singh Gill, DAG, Punjab for the respondent-State. Mr. R.S.Rai, Senior Advocate with Mr. Vishal Sharma, Advocate for the complainant. S.S.Saron, J. This petition has been filed by the petitioner seeking pre-arrest bail under Section 438 of the Code of Criminal Procedure in case FIR No. 33, dated 18.02.2009, registered for the offences under Section 307 read with section 34 of the Indian Penal Code at Police Station Sadar,Ludhiana. The FIR in the case has been registered on the statement of Tarsem Lal (hereinafter referred to as the 'Complainant'). It is alleged by the complainant that in the temple of the village, work of grinding the marble floor was being carried out, which was looked after by him. On 17.02.2009, at Criminal Misc. No.M-28623 of 2009 [2] about 7:30 p.m in the evening, the complainant was going to his house after locking the door of the temple. When he reached 8- 10 feet ahead of the house of Jeet Singh son of Bant Singh (petitioner), from behind he heard the sound of the temple door being opened. Then the petitioner tried to take out the revolver of the complainant from the right pocket of the jacket of the complainant. The complainant then held the revolver in his right hand and the petitioner started struggling. In the struggle, the petitioner, it is alleged pressed the trigger of the revolver which was in the hand of the complainant. It is alleged that the petitioner pressed the trigger of the revolver of the complainant with the intention to kill him. The bullet from the pistol that was fired struck the complainant on the back, below his neck. The complainant then shouted of his being killed and then a third person threw a blanket over him. In the meanwhile, on hearing the cries of the complainant, Karnail Singh son of Maha Singh came at the spot. Complainant can recognize Jeet Singh and the other unidentified persons, if they came in front of him. The reason for the enmity was that the complainant in a gathering at a house had stated that why were they making an illiterate person as a president, due to that he had an ill-will in his mind against the complainant. The complainant then went to the house of Jagroop Singh son of Gurnam Singh alongwith Karnail Singh, who took him to the hospital where he was got admitted. The complainant was under treatment there. He made a statement in writing, which he heard and accepted as correct. A Criminal Misc. No.M-28623 of 2009 [3] request was made for taking action. Learned counsel for the petitioner has contended that the facts and circumstances of the case are such which entitle the petitioner to the grant of pre-arrest bail, inasmuch as, the entire case has been cooked up by the complainant. It is submitted that initially the complainant was admitted in a private nursing home, where the bullet injury had not been operated, upon. Thereafter, the petitioner was admitted at the New Dayanand Hospital, Ludhiana, at about 9:10 p.m on 17.02.2009. He was discharged on 20.02.2009. It is submitted that even though the doctor at New Dayanand Hospital, Ludhiana, noticed that there was a bullet in the neck of the complainant, however, he on his own got himself discharged from the hospital. Then he went with the bullet embedded in his neck to Netherlands on 31.03.2009, from where he is alleged to have got the bullet removed. It is submitted that in fact, the complainant on his own has implanted the bullet with a view to falsely implicate the petitioner. A reference has been made to the statement (Annexure P-5) of Dr.Raman B.Garg, who was on emergency duty at New Dayanand Hospital, Ludhiana, on 17.02.2009. He has stated that at the time of admission of the complainant there was no blood on the vest (banian) worn by him. It is submitted by the learned counsel for the petitioner that the bullet has not been recovered till date and the clothes of the complainant were sent to the Chemical Examiner on 24.11.2009, after a lapse of more than 9 months. A reference has also been made to the enquiry report (AnnexureP- Criminal Misc. No.M-28623 of 2009 [4] 7), conducted by Nirmal Singh Sub Inspector, the investigating officer, in which he has mentioned that no blood was found at the spot. A further reference has been made to the report of the Forensic Science Laboratory (“FSL” – for short), Punjab Chandigarh, dated 18.11.2009, to contend that after examination of the revolver, which was recovered and another cartridge, which was taken in possession by the police, it was observed that no opinion could be offered as to whether a cartridge had been fired from 0.32 inch revolver bearing no. A- 4763 marked W/1 contained in parcel 'B'. Reference has also been made to the reply by way of affidavit of Shri Balraj Singh Gill, PPS, Deputy Superintendent of Police, Sahnewal, Ludhiana City, Ludhiana, which was filed in response to Criminal Misc. No.M-17230 of 2009 filed by the complainant, in which it has been inter alia stated that the complainant did not allow Karnail Singh-the alleged eye witness to get his statement recorded and openly stated that Karnail Singh would not get his statement recorded. Besides, it is stated that the doctor after examining the complainant had mentioned that since the bullet was not causing any neurosevsoy deficit, it was not removed. Ultimately,in view of the investigations carried out, a report was submitted before a senior officer and permission was sought to submit an untraced report in respect of the matter. Therefore, it is submitted that apparently a false case has been registered, in which not only the complainant has cooked up a story in collusion with the investigating authorities but has gone abroad with the Criminal Misc. No.M-28623 of 2009 [5] bullet embedded in his neck and is alleged to have got a surgery done there. However, despite the surgery, he has not been able to submit the bullet that is stated to have been removed from his neck to the police authorities for their examination and investigation. In response learned State counsel and learned Senior Counsel appearing for the complainant, have submitted that the present case is for the grant of pre-arrest bail where considerations for grant of bail are entirely different than in a case of post-arrest bail. It is submitted that the complainant is a Non Resident Indian (NRI) and since the operation for the removal of the bullet from his neck could not be carried out by local Anaesthesia and it was not causing any defect, he had decided to get it removed from Netherland. However, that by itself, according to the learned Senior Counsel for the complainant, would not undermine the gravity of the incident in which the petitioner had fired with a revolver of the complainant and the fire arm shot resulted in the bullet being embedded in the neck of the complainant. It is submitted that Dr. Raman B.Garg , gave a statement (Annexure P-5) that the vest (baniyan) worn by the complainant was not smeared with blood. However, he made a subsequent statement on 25.08.2009, to the effect that he was on emergency duty on 17.02.2009, and that the earlier statement made by him on 7.07.2009, that the clothes of the injured Tarsem Lal (complainant) were not smeared with blood was made as there was inadvertently no Criminal Misc. No.M-28623 of 2009 [6] reference in this regard in the MLR report. Infact, a parcel of clothes of the complainant smeared with blood was prepared on 18.02.2009 and after putting seal of the DMCH were deposited with the Security Officer. Learned Senior Counsel has also submitted that the petitioner was a life convict. Besides, the injury suffered by the complainant was an out-come of the incident that occurred and this can be seen from the report regarding the discharge slip of New Dayanand Hospital, Ludhiana, as also from the surgical operation that was carried out at Netherlands. Moreover, the X-ray that was conducted also shows the bullet embedded in the neck of the complainant. The complainant has placed on record Annexure C-2, which is the medical report issued by Department of Surgery, Netherland. After giving my thoughtful consideration to the contentions of the learned counsel for the parties and perusing the material on record, it may be noticed that the fact that the bullet is embedded in the neck of the complainant is quite evident from the medical reports on record of Dayanand Medical College and Hospital, Ludhiana and of the Department of Surgery, Netherland as also from the X-rays. In terms of the discharge slip (Annexure P-3), issued by the Dayanand Medical College and Hospital, Ludhiana, it is mentioned that removal of projectile under local anesthesia was tried but the projectile could not be removed. The patient was advised removal of projectile under G.A. (general anesthesia) but the attendants refused surgery and wanted discharge on request. In terms of the medical report Criminal Misc. No.M-28623 of 2009 [7] (Annexure C-2) an operation was conducted in the surgery department of a hospital at Netherland. The diagnosis that was carried out records, I Corpus alienum (bullet) neck on the left was there. The same was removed. The manner in which the bullet injury occurred, is a subject matter of investigation. However, according to the petitioner, the complainant on his own implanted the bullet, so as to falsely implicate the petitioner. This in fact is the domain of the investigation and it is for the police to investigate and ascertain the manner in which the injury has been caused to the complainant. In proceeding for grant of pre-arrest bail this Court is not to embark upon an enquiry as to the manner in which the injury was suffered or how the bullet came to be embedded in the neck of the complainant. The emphasis of the learned counsel for the petitioner is on the reply (Annexure P-8) filed by Shri Balraj Singh Gill, PPS, Deputy Superintendent of Police, Sahnewal, Ludhiana City, Ludhiana. However, the learned Senior Counsel for the complainant has referred to the report of the SP City-I of Ludhiana. The same in my view are also the domain of the investigation as the case is still under investigation. It is for the police to ascertain as to whether the FIR was falsely registered or the allegations as have been made are correct. These aspects are to be considered by the police and this Court keeping in view the allegations as made and that the bullet fired from the revolver hit the complainant on his neck and the manner in which the incident occurred do not warrant the grant of pre-arrest bail although these may be Criminal Misc. No.M-28623 of 2009 [8] grounds for consideration for grant of regular bail. The consideration of the Courts’ decision on an application seeking pre-arrest bail under Section 438 of the Code of Criminal Procedure, are materially different from that of an accused seeking grant of a post arrest bail or for that matter even seeking suspension of sentence pending appeal before a higher court. In a case of pre-arrest bail, the fact of eliciting more and useful information by custodial interrogation of the petitioner is to be kept in view. The exercise of power to grant pre-arrest bail is somewhat extra ordinary in character. In the facts and circumstances of the case, no case is made out for the grant of pre-arrest bail. Besides, it cannot be said that the custody of the petitioner is not required for the purposes of investigation. However, even, if an application seeking pre-arrest bail is dismissed, the police is not always bound to arrest the accused even if there are allegations of his committing a cognizable offence. The Hon'ble Supreme Court in “M.C.Abraham and another Versus State of Maharashtra and Others” 2003(1) R.C.R.(Criminal)452 held that in a case where police was investigating the offence but not arresting the accused, the Court cannot direct the police to arrest or not to arrest the accused. Power of police to arrest an accused is discretionary and it is not always bound to arrest an accused even if the allegation against him is of having committed a cognizable offence. Therefore, it is for the petitioner to satisfy the investigating authority on the basis of the record that his case does not fall in the nature of Criminal Misc. No.M-28623 of 2009 [9] allegations as made. This court would be reluctant to grant a concession of pre-arrest bail, as the custodial interrogation may be necessary for ascertaining the true nature or the manner in which the incident occurred. As already noticed the allegation against the petitioner is that he fired with a revolver. The result of the FSL Examination dated 18.11.2009 reads as follows:- “On the basis of evidence available on 0.32 inch K.F.S & WL rimmed crime cartridge case marked C/1 contained in parcel ‘A’ and also in the absence of percussion cap of the same, no opinion can be offered as to whether it had been fired from 0.32 inch revolver bearing no. A-4763 marked W/1 contained in parcel ‘B’ referred above or not.” The said opinion is not to be gone into or considered by this Court at this stage. As regards the earlier statement of Dr. Raman B. Garg regarding there being no blood on the vest of the injured, it may be noticed that in the subsequent statement recorded on 25.08.2009, he has stated that he was on emergency duty on 17.02.2009. The complainant was admitted during his duty, complaining of having received a bullet injury. At the time of admission, he was wearing vest (banian), one shirt and one jacket. These were removed and on 18.02.2009, a parcel was prepared with the seal of DMCH and deposited with the Criminal Misc. No.M-28623 of 2009 [10] security officer. The police had made an application on 7.07.2009 regarding taking the clothes etc. He on examining the MLR report stated that no clothes of Tarsem Lal (complainant) smeared with blood were taken in possession as in the MLR there was inadvertently no mention of the clothes. The earlier statement of Dr. Raman B. Garg of New Dayanand Hospital, Ludhiana, therefore, was incorrect. The same has been corrected in terms of the subsequent statement recorded on 25.8.2009. As such the earlier statement of the said doctor at this stage is also not of much significance. In the circumstance, no ground of pre- arrest bail is made out. This petition is accordingly dismissed. However, it is made clear that in case, no case is made out for arrest of the petitioner in the light of the observations in M.C.Abraham's case (supra), the police would not be bound to arrest him. [S.S.SARON] JUDGE 18th December, 2009 Shivani Kaushik/amit