IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Misc. No. M-18393 of 2009 Date of decision : August 07, 2009 Ram Kishore and others ....Petitioners versus State of Haryana ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. RS Cheema, Senior Advocate with Mr. Jasdev Singh Mehndiratta, Advocate, for the petitioners Mr. Pardeep Virk, DAG Haryana with Mr. R.M. Singh, Advocate, for the complainant L.N. Mittal, J. (Oral) Ram Kishore, Sonu Kumar Singh, Kuldeep and Akhtar have filed this petition for bail in case FIR No. 92 dated 7.4.2009 under sections 338, 201, 34 IPC (report under section 173 Cr.P.C. under sections 304-A, 201, 34 IPC), Police Station D.L.F. Phase-II, Gurgaon. I have heard learned counsel for the parties and perused the case file. Nishant Mohan Sharma since deceased was working with M/s Sapiant Corporation Ltd. situated at DLF Services Limited, Gurgaon. He was stuck up in the lift. Petitioner Nos. 1 and 2 are Junior Engineers and petitioner Nos. 3 and 4 are Electricians. The petitioners, as members of the Criminal Misc. No. M-18393 of 2009 -2- rescue team came to the spot and manually opened the door of the lift with key. The lift had stopped in between basement and ground floor. Petitioner Nos. 1 and 2 asked Nishant Mohan Sharma if he could come out comfortably. He replied in the affirmative and handed over his bag to petitioner no. 2. Thereafter Nishant Mohan Sharma tried to come out of the lift but the lift started going upwards and Nishant Mohan Sharma was entrapped and injured seriously. Official of M/s KONE Elevator India (P) Limited came and retrieved Nishant Mohan Sharma from the lift. The occurrence took place on 7.4.2009. Nishant Mohan Sharma succumbed to his injuries on 10.4.2009. Learned counsel for the petitioners vehemently contended that the case would fall under section 304-A IPC and not under section 304 Part- II IPC because there is only allegation of negligence. Reference has been made to statements made by Suresh Kumar, Annexure P/10 and Sanjeev Sood, Annexure P/11 during investigation. Reference has also been made to report Annexure P/5 by Executive Engineer, Electrical Inspectorate, Haryana that sensors of the door of the lift were found working and therefore, the lift with open door could move either due to release of brake from the lift machine room by some person or due to mechanical fault. The petitioners are in custody since 1.5.2009 i.e. for more than three months. On the other hand, learned State counsel and learned counsel for the complainant contended that petitioner Nos. 3 and 4 had gone at the top and released the brake of the lift resulting in the mishap. Learned counsel for the petitioners, however, countered this submission by submitting that there is no evidence to substantiate this contention of the Criminal Misc. No. M-18393 of 2009 -3- prosecution. Attention of the Court in this regard has been drawn to the statements of Suresh Kumar and Sanjeev Sood who have not stated that any of the petitioners had gone from the spot where the lift was stuck up and was opened by petitioner no. 1. Learned counsel for the petitioners also submitted that the only negligence that could be attributed to the petitioners is that they had not disconnected the lift before asking Nishant Mohan Sharma to come out of it. It was also submitted that challan has been presented under section 304-A IPC and not under section 304 Part-II IPC. Without commenting anything on the merits as to whether case falls under section 304-A IPC or 304 Part-II IPC, lest it may prejudice either side during the trial, I am of the considered view that the petitioners deserve to be released on bail because they formed part of the rescue team and tried to rescue Nishant Mohan Sharma from the lift. It is unfortunate that mishap had occurred resulting into death of Nishant Mohan Sharma. It is for the trial court to see whether the case falls under section 304-A IPC or under section 304 Part-II IPC. The instant bail petition is allowed. Petitioners be released on bail to the satisfaction of learned Chief Judicial Magistrate/Duty Magistrate, Gurgaon. ( L.N. Mittal ) August 07, 2009 Judge 'dalbir'