Criminal Misc. No. M-26506 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Criminal Misc. No. M-26506 of 2008 (O&M) Date of Decision:12.02.2009 Baldev Singh and another .....Petitioners Vs. State of Punjab .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. L.M. Gulati, Advocate for the petitioner. Mr. T.S. Salana, Deputy Advocate General, Punjab for the respondent. **** JUDGMENT HARBANS LAL, J. This petition has been moved by Baldev Singh and his brother Balwinder Singh under Section 438 of the Code of Criminal Procedure seeking anticipatory bail in case FIR No.187 dated 30.8.2008 registered under Sections 302/ 307/ 323/ 324/ 115/ 120-B/ 148/ 149 IPC at Police Station Islamabad, District Amritsar. This case has been registered on the basis of the statement Annexure P.1 of Palwinder Singh injured, who stated in the following terms:- “Stated that I am resident of above said address and running an auto repair workshop in Shaheed Bhagat Singh market near bus stand. Yesterday, on 29.8.2008 around 10:30 P.M, I had gone to Guru Nanak Bazar for purchasing some domestic articles. In the mean time, on a motor cycle, Balwinder Singh alias Rinku Criminal Misc. No. M-26506 of 2008 (O&M) -2- and Bladev Singh alias Bhola sons of Satnam Singh, resident of Gali No.3, Guru Nanak Pura, Islamabad, Amritsar came behind me. One scooter bearing registration No.CHI-1338 colour brinjal being driven by Tejinder Sharma son of Narender Singh, resident of Kot Khalsa was accompanying them. Ghuman son of Paramjit Ram resident of Village Mahal armed with Datar and Lakhwinder Singh alias Lakhi son of Shamreek Singh resident of village Mahal armed with Kirch riding the scooter came towards me and stopped their scooter. Then Balwinder Singh alias Rinku and Baldev Singh alias Bhola calling the scooter riders by name, pointed towards me saying that he is Palwinder Singh, a self styled leader of Shiromani Akali Dal party and asked them to catch hold of mine and kill me. On this, Ghuman gave a datar blow with an intention to kill me. The same landed on the turban on my head, but I remained unhurt. He wielded another Datar blow towards my head. To ward off the same, I raised my left hand. It rested on my left hand. Lakhwinder alias Lucky gave a kirch blow which landed on my left hand. Tejinder Sharma gave a baseball bat blow which hit me on my left thigh. In the mean time my brother Guriqbal Singh came at the spot, who witnessed the occurrence. When I and my brother raised raula of “Bachao, Bachao,” the above said accused decamped from the spot on their vehicles alongwith their respective weapons. My brother removed me to the hospital. The cause of enmity is that around two years back, Balwinder Singh alias Rinku and Criminal Misc. No. M-26506 of 2008 (O&M) -3- Baldev Singh alias Bhola had tried to take possession forcibly of the house of Sukhwinder Kaur, whom I had rendered help. For this reason, both the brothers in connivance with Tejinder Sharma, Ghuman and Lakhwinder had assaulted me with murderous intent.” I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Mr. L.M. Gulati, Advocate appearing on behalf of the petitioners urged with great eloquence that vide order dated 16.10.2008 passed by some other Bench, interim anticipatory bail was granted to the petitioners, who in compliance with this order have joined investigation and that being so, the said order may be made absolute. To tide over this submission, Mr. T.S. Salana, Deputy Advocate General, Punjab pressed into service that in view of the gravity of offence, the petitioners are not entitled to grant of anticipatory bail. I have well considered the rival contentions. The order dated 23.12.2008 passed by this Court reads in the following terms:- “Present: Mr. L.M. Gulati, Advocate for the petitioners. Ms. Rajni Gupta, DAG, Punjab. **** From the perusal of the FIR, it transpires that no person was murdered. Even H.C. Vijay Kumar who is present in the Court along with records has stated that no person was murdered in the case, but it is surprising that Investigating Officer has added an offence under Section 302 IPC. Let Investigating Officer should submit his explanation as to under Criminal Misc. No. M-26506 of 2008 (O&M) -4- what circumstances, he has added Section 302 IPC, otherwise the inference would be drawn that Investigating Officer in order to make misrepresentation before the authorities and to blackmail the accused added the offence. Adjourned to 12.02.2009. However, interim order dated 16.10.2008 shall continue. Copy of the order be given dasti to Deputy Advocate General, Punjab under the signature of Court Secretary/ Reader. sd/- 23.12.2008 ( A.N. JINDAL ) Ajay JUDGE” In compliance with the order dated 23.12.2008 ibid, ASI Dilbagh Singh has filed reply by way of affidavit, which is taken on record. At this juncture, Mr. Gulati canvassed at the bar that a glance through Annexure P.2, the English rendering of the news dated 30.8.2008 which appeared in the columns of `Dainik Jagran' newspaper would reveal that Palwinder Singh was assaulted by some unknown assailants and that being so, the version of the injured Palwinder Singh ought to be disbelieved. This contention does not find favour with me. There is no material in relation to the authenticity of this news. Palwinder Singh author of the F.I.R has named the petitioners along with others in the F.I.R. Axiomatically, much capital has been sought to be made out of the news by the learned counsel for the petitioners. In the face of F.I.R, the stated news carries no evidentiary value, rather pales into insignificance. Section 438 of the Code of Criminal Procedure confers extra- Criminal Misc. No. M-26506 of 2008 (O&M) -5- ordinary powers upon a High Court and a Court of Sessions to direct that in the event of his arrest, an accused shall be released on bail. This power has to be exercised in exceptional circumstances. The factors to be kept in mind, while adjudicating a plea for grant of anticipatory bail, are significantly different from those of a plea of regular bail. The provisions of Section 438 ibid are in the nature of an exception to general rule that an investigating agency must be given a free reign to arrive at the truth. A few of the factors to be taken into consideration are the gravity or seriousness of the offences complained of, the proposed charges that are likely to be levelled, the possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that the witnesses would tamper with the evidence, as also public interest and the interest of the State. A significant fact, that must be taken into consideration, when the circumstances so demand, is that interrogation of an individual, clothed with a protective shield of interim protection, is qualitatively less effective than a custodial interrogation. In re: State represented by C.B.I. v. Anil Sharma, 1997(4) Recent Criminal Reports (Criminal) 268 (SC), the Apex Court has observed as under:- “We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this, effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude, if the suspected person knows that Criminal Misc. No. M-26506 of 2008 (O&M) -6- he is well protected and insulated by a pre-arrest bail order during the time, he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders.” Adverting back to the facts of the instant case, needless to say, the case has been registered under Sections 302, 307, 323, 324, 115, 120-B, 148 read with Section 149 of IPC. At this juncture, on instructions from ASI Dilbagh Singh, the learned State counsel informed that the petitioners in compliance with the order dated 16.10.2008 have joined investigation, but it it apt to be borne in mind that the seriousness of the offences complained of does not warrant to admit anticipatory bail to the petitioners. Only on interrogation of the petitioners, it can be elicited that they had abetted their co-accused to make a murderous attack on the complainant. Whether the co-accused were hired and if so, for what consideration, can be elicited by way of custodial interrogation of the petitioners? Where and when the conspiracy was hatched can be disinterred only in the stated course? Was this occurrence a result of contract killing is a question mark requiring custodial interrogation? The provisions of Section 438 ibid would be invoked, where custodial interrogation is necessary. The law has cast a Criminal Misc. No. M-26506 of 2008 (O&M) -7- duty upon the Court to strike a balance between the rights of an accused and the duty and an obligation conferred upon an investigating agency while considering an application under Section 438 ibid. Taking into consideration the entirety of facts and circumstances of the present case, I am of the considered opinion that the present petition merits dismissal. Ordered accordingly. ASI Dilbagh Singh in his reply by way of affidavit has solemnly affirmed as under:- “1. That as per the orders and directions of this Hon'ble Court order dated 23.12.08 directing therein to submit explanation as to what circumstances the offence under Section 302 IPC has been added in the case FIR No.187 dated 30.08.08 under section 302/307/323/324/115/120- B/148/149 IPC PS Islamabad, Amritsar and in this regard it is submitted as under. 2. That accused Baldev Singh and Balwinder Singh (Petitioners) had given Ransom (Supari) amount to Tejinder Sharma son of Narinder Kumar resident of Gali Piare Di Kot Khalsa, Amritsar and instigating for murdering to Palwinder Singh son of Bakshish Singh R/o Gali No.11 Ram Nagar Colony, Islamabad, Amritsar resulting said Palwinder Singh was badly injured by the accused petitioners and other co-accused, but said Palwinder Singh was luckily saved timely by the Doctors to provide him Medical treatment and accordingly Section under Section 115 IPC was made out. Thus Criminal Misc. No. M-26506 of 2008 (O&M) -8- offence under Section 115 IPC read with Section 302 IPC was added in the case noted above. 3. That this observation in Section 115 IPC is that whoever abets the commission of an offence punishable with death or imprisonment for life, if that offence be not committed in consequence of the abetment and no express provision is liable by the Code for the punishment of such abetment, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. If act causing harm be done in consequence and if an act for which the abettor is liable to consequence of the abetment and which causes hurt to any person, is done the abettor shall be liable to imprisonment of either description for a term which may extend to fourteen years and shall also be liable to fine. 4. Thus, the accused petitioners Baldev Singh and Balwinder Singh are liable for the prosecution of punishment of death or imprisonment for life as they have committed offence under section 115 read with Section 302 IPC. And accordingly explanation regarding added of offence under section 115 read with section 302 IPC is submitted please.” I have given a deep and thoughtful consideration to this reply. Section 115 of IPC reads in the following terms:- Criminal Misc. No. M-26506 of 2008 (O&M) -9- “115. Abetment of offence punishable with death or imprisonment for life – if offence not committed. -- Whoever abets the commission of an offence punishable with death or [imprisonment for life], shall, if that offence be not committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; if act causing harm be done in consequence. -- and if any act for which the abettor is liable in consequence of the abetment, and which causes hurt to any person, is done, the abettor shall be liable to imprisonment of either description for a term which may extend to fourteen years, and shall also be liable to fine.” Axiomatically, this Section deals with the abetment of the commission of the stated offences. Annexure P.3 is the copy of the medico legal examination report of Palwinder Singh injured. The particulars of injuries in this document read as under:- “Particulars of Injuries 1. Incised wound obliquely placed (not legible) 1 cm (not legible) on left hand (not legible). 2. Reddish abrasion 4.8 x 0.2 cm in length, in the area of (not legible) left thigh. 3. Patient complaints of pain abnormally/ tenderness felt (not legible). Criminal Misc. No. M-26506 of 2008 (O&M) -10- Injury No.1 after X-ray report. Injury No.2 and 3 simple. Duration within 6 hours.” Ostensibly, these injuries are coherent with the version in the FIR. It has been manifested in plain words by ASI Dilbagh Singh in his above-referred reply that Palwinder Singh was luckily saved timely by the doctors. Thus, palpably, it is his own plea that Palwinder Singh was not done to death. Statutorily speaking, the statement of the injured or the heirs of the deceased or the dying declaration, too often, become the basis of FIR. Here in this case, if Palwinder Singh injured had survived, it has been left in the womb of mystery as to under what circumstances, the offence under Section 302 of IPC was added. It is not out of context to mention here that Section 115 of IPC is to go with the main offence. Queerly enough that without there being murder, the offence punishable under Section 302 of IPC has been added in the FIR. In his reply, the afore-mentioned ASI has not apportioned any plausible, luculent or cogent reason for insertion of this Section in the FIR. The matter ought to be taken to its logical conclusion. Therefore, let a copy of this judgment be sent to the Senior Superintendent of Police, Amritsar, Director General of Police, Punjab and Principal Secretary Home to probe the matter and initiate the action as warranted under the circumstances against the aforesaid A.S.I. Disposed of accordingly. February 12, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No