CRM-M No.8672 of 2010 1 In the High Court of Punjab and Haryana, Chandigarh. CRM-M No.8672 of 2010 (O&M) Date of Decision: 24.03.2011 Kuldip Singh ....Petitioner Versus State of UT, Chandigarh. ....Respondents. Coram:- Hon'ble Mr. Justice Alok Singh 1.Whether reporters of local news papers may be allowed to see judgement ? 2. To be referred to reporters or not ? 3. Whether the judgement should be reported in the Digest ? Present: Mr. R.S. Cheema, Sr. Advocate with Mr. Rajiv Trikha, Advocate for the petitioner. Mr. Rajiv Sharma,Advocate Counsel for the UT, Chandigarh. ... Alok Singh, J (Oral). This is an application seeking regular bail in case FIR No.205 dated 25.11.2009 under Sections 302/307/392/34 IPC and Sections 25/27/54/59 of Arms Act, P.S. Sector 19, Chandigarh. Brief facts are that on 25.11.2009, Simmy Sharma has lodged an FIR, which reads as under:- “About 1-1/2-2 years ago, Harjinder Singh had purchased car No. PB 16-C 7070, Red Ford Fiesta, on the basis of documents CRM-M No.8672 of 2010 2 of Davinder Singh S/o Gurnam Singh, due to which a dispute was going on in between both of them. Davinder Singh had also come earlier to Harjinder Singh in his office with regard to the aforesaid car and after having a talk had gone back. Today, 7.30 P.M., Davinder Singh along with his 5-6 accomplices came to the office and they having entered the Cabin of Harjinder Singh were talking about Ford Fiesta Car. One Sardar person was accompanying with them. They entered into an altercation and Harjinder Singh gave me a voice saying, “Simmy, make a phone call to the Police”, thereafter, Davinder Singh and Harjinder Singh while quarreling, came out of the Cabin. The accomplices of Davinder Singh had also come out and they also started manhandling Harjinder Singh. I tried to rescue him whereupon they pushed me aside and Davinder Singh' accomplices overpowered Harjinder Singh. Davinder Singh declared that since he was not going to hand over the car to them so they should finish him that day and Davinder Singh having taken out his pistol made a fire shot on the left side of chest near the shoulder of Harjinder Singh. I raised an alarm saying,”Save Save” and I had broken the kitchen pane. In the meantime, Davinder Singh along with his accomplices fled away from the spot. Thereafter, with the help of the persons of the market, I took Harjinder Singh to G.M.C.H, Sector 32 for treatment. A legal action may kindly be taken against Davinder Singh and his accomplices Shri Rajiv Sharma was CRM-M No.8672 of 2010 3 also there.” During the investigation, it was found that present petitioner alongwith other co-accused came to Sector 20-A, Chandigarh in a car driven by the petitioner – accused. He remained down stairs near the car and other co-accused went up stairs when Harjinder Singh was shot dead. Thereafter, other co-accused came down stairs and went from the spot in a car driven by present accused – petitioner. Vijay Kumar, prosecution witness has seen the accused – petitioner coming, waiting and going in a car alongwith other co- accused driven by the petitioner. Mr. R.S. Cheema, learned Senior Advocate assisted by Mr. Rajiv Trikha, Advocate has vehemently argued that petitioner has played no role in the murder of Harjinder Singh. He has further asserted that from the prosecution story, it is clear that petitioner was standing down stairs and was not on the spot; Devinder Singh allegedly fired shot on the left side of chest of Harjinder Singh – deceased. He has further stated that since petitioner is neither named in the FIR nor played any active role except taking the other accused to Sector 20-A and again taking the accused from Sector 20-A to back. He has further argued that even if it is presumed that petitioner was member of unlawful assembly, that unlawful assembly was to take back the car or the cost thereof from Harjinder Singh deceased and not to commit murder of Harjinder Singh. He has further argued that on the up- stairs another unlawful assembly can be said to have been formed of which the petitioner was not the member. Mr. Rajiv Sharma, learned counsel for the State of UT, Chandigarh has vehemently argued that out of 37 witnesses, 16 have already been examined and Vijay Kumar, prosecution witness has identified the CRM-M No.8672 of 2010 4 present accused – petitioner in the Court room, stating that he was present on the down stairs and has taken back the accused in his car. As per prosecution story, petitioner alongwith other co-accused has formed unlawful assembly and has come to Sector 20-A either to snatch the car from Harjinder Singh or to get cost of the car. On the up stairs, Harjinder Singh has asked Simmy to make phone call to the police. On this, other accused started manhandling Harjinder Singh and Devinder Singh has fired shot and due to gun shot injury, Harjinder Singh has died. Thereafter, all the co-accused came down stairs, sat in the car driven by the present petitioner and vanished from the spot. Prima-facie, in the opinion of this Court, all the accused formed unlawful assembly either to snatch the car forcefully or to recover the money from Harjinder Singh and one of the co-accused was armed with pistol, all of them came on the spot in one car driven by the accused and has left the spot in the same car driven by the accused, therefore, petitioner can be held guilty with the help of Section 149 I.P.C. even if petitioner has not caused any injury. The Apex Court in the matter of Chandra Bihari Gautam and others Vs. State of Bihar, 2002 (9) SCC 208, in paragraph 10 has held as under:- “Section 149 has two parts. First part deals with the commission of an offence by a member of an unlawful assembly in prosecution of the common object of that assembly and the second part deals with the liability of the members of the unlawful assembly who knew that an offence was likely to be committed in prosecution of the object for which they had CRM-M No.8672 of 2010 5 assembled. Even if the common object of the unlawful assembly is stated to be apprehending Nawlesh Singh only, the fact that the accused persons had attacked the house of the complainant at the dead of night and were armed with deadly weapons including the guns, and used petrol bombs, proves beyond doubt that they knew that in prosecution of the alleged initial common object, murders were likely to be committed. The knowledge of the consequential action in furtherance of the initial common object is sufficient to attract the applicability of Section 149 for holding the members of the unlawful assembly guilty for the commission of the offence by any member of such assembly.” The view of the Apex Court in the matter of Chandra Bihari Gautam's case (supra) has been approved in the latest judgement of the Apex Court in the case of Ramesh and others Vs. State of Haryana, 2011 (1) RCR (Criminal) 259. In the case of Ramesh (supra) also, all the accused came together and had left the place together. Therefore, the Apex Court has observed that all the members of the unlawful assembly are liable to be convicted. I do not agree with learned senior counsel that on the up stairs another unlawful assembly was formed of which petitioner was not the member. Coming on the spot together and leaving the spot together in furtherance of common object either to snatch the car forcefully or to take money by using pistol carried by accused Devinder, is sufficient to invoke Section 149 IPC. In the opinion of this Court, nowadays, taking possession CRM-M No.8672 of 2010 6 of the vehicle forcefully for non-payment of lease money under the agreement or non-payment of loan amount is wide rampant. Snatching the vehicle by using force for non-payment of loan money or cost of the vehicle is an offence punishable under Section 392 IPC, as held by this Court in the matter of Tarun Bhargava Vs. State of Haryana, 2002(3) RCR (Crl.) 312 (P&H) as well as in the matter of M/s. Punjab Kashmir Finance Limited Vs. State of Haryana and others, 2008(2) RCR (Crl.) 52. Moreover, in the present case, prosecution witnesses are being examined and there seems to be no undue delay in the conclusion of the trial. Therefore, I am not inclined to enlarge the petitioner on bail. Petition is dismissed. However, it is made clear that any observations made hereinabove is solely for the purpose of deciding the bail petition and shall not be taken into account by the trial Court while deciding the trial. ( Alok Singh ) Judge 24.03.2011 sk.