1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.Ps. (M) No. 1112, 1328, 1329 of 2008 Along with Cr.M.P.(M) No. 2 & 3 of 2009 Reserved on: 2.1.2009 Decided on: January 7th , 2009 1. Cr.M.P.(M )No.1112 of 2008 Anand Prakash Singh versus State 2. Cr.M.P.(M)No. 1328 of 2008 Mrityunjay Pradhan versus State 3. Cr.M.P.(M) No.1329 of 2008 Akhilesh Kumar Pandey versus State 4. Cr.M.P.(M) No. 2 of 2009 Kanahya Rai versus State 5. Cr.M.P.(M) No. 3 of 2009 Brajesh Kumar versus State. Coram The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ? No. For the Petitioners: Mr. Nagender Rai, Senior Advocate, with Mr. Manoj Tripathi and Rajiv Rai, Advocates. For the respondent: Mr. J.S.Guleria, Law Officer. 2 Surinder Singh, J. All the above titled bail petitions, moved by the petitioners, are arising out of the FIRs No. 162/08 and 163/ 2008, therefore, taken up together for its decision. The petitioners were the armed guards of M/S Virgo Appliances Pvt. Limited, Company posted in its premises. In the gun firing incident, which took place around 3 p.m. at the factory’s main gate on 30.6.2008 they were arrested in case FIR No. 162 of 2008 registered on 30.6.2008 in Police Station Boileauganj, Shimla under sections 302, 307, 109 read with section 34 of the Indian Penal Code and also under section 25 of the Arms Act for causing murder of one Amarjit Singh a suspended employee of the Company and also for attempting to murder some others. Succinctly, the facts of the case can be stated thus. Company suspended its nine employees for their alleged misconduct including the complainant Khem Chand, which caused a tussle between the Employees Union and Company. The Company took the matter to the Labour Court for the approval of their dismissal. Few employees went on strike. A Civil Suit was also earlier filed in the court of Civil Judge (Senior Division) Shimla wherein the suspended employees were impleaded as defendants amongst others. An exparte injunction was issued by the court on 2.8.2007 restraining the defendants from gathering, holding, Dharnas, assembling, staging-demonstration, shouting slogans, holding meetings, throwing stones and causing nuisance to the administration of the company and to its non-striking employees. 3 Further the defendants were also restrained to interfere in any manner with the ingress and egress of the employees, visitors and material within the premises or outside the premises of the Company in Plot No. 49, 102 and 103 Industrial Area Shoghi, District Shimla (H.P.) within a range of 500 meters till further orders. Although interim orders were issued, but there is nothing on record to show whether the defendants including the suspended employees had the notice thereof. However, on 30.6.2008 a gate meeting of the Employees Union was scheduled to be held outside the factory premises. The Company informed the police and the local administration. Consequently, a police party, headed by S.I. Mathura Dass of Police Station, Boileauganj, Shimla was deputed. They reached in the factory premises at 2 p.m.. It is alleged that at about 300 employees including the nine suspended employees gathered at the gate of the factory of M/S Virgo Appliances (P) Limited. This was the time for change over to the next shift of the workers in the factory. Some workers were coming out and some were going in the factory premises through the gate, but the petitioners, who were the security guards stopped the entry of the protesting employees including the complainant. It is alleged some of them managed to get in side the gate and objected to the untoward behaviour of the petitioners (security guards) but they opened fire as a result of which Ravi Kant, Ashok Kumar, Pankaj, Khem Chand and Amarjit Singh sustained the bullet injuries. Since the condition of Amarjit Singh was serious, he was immediately removed to the hospital, where he was declared dead. 4 FIR was lodged at the instance of Khem Chand. The petitioners were arrested along with others. During the investigation, police recovered three pistols and two revolvers along with empty and live cartridges from the possession of the petitioners. The pistol and revolvers, which were recovered at the instance of the petitioners, were seized and sent to the Forensic Science Laboratory for examination. In the opinion of the expert, these were fired through. The bail was declined to the petitioners by the court of sessions. However, a challan was presented in the court for their trial under the aforesaid sections. Now the present applications have been moved for bail. The respondent-State filed a detailed report and objected to their enlargement on bail. Shri Nagender Rai, Learned Senior Advocate, assisted by Mr. M. Tripathi and Rajiv Rai, Advocate, has vehementally argued that the case in question against the petitioners falls within the ambit of private defence to the life and property. He forcefully contended that the suspended employees along with others were restrained by the civil court not to gather within the range of 500 meters of the factory premises and cause any annoyance to its employees and administration of the Company but they defied the orders. The Managing Director and other officers of the Company had been requesting the District administration and police from time to time in writing to take appropriate steps but they failed to take any effective action. Ultimately on the day of alleged incident a police party was deputed to the spot and in their presence striking employees including the persons, against whom restraining orders were passed barged into the factory gate, ransacked the factory 5 premises and damaged the property of the company. All the petitioners got themselves locked up in a room but the striking employees caused damage to their room, walls, window panes and smashed the computers, furniture and other machinery lying there. Consequently, the petitioners were constrained to defend themselves and fired air shots to scare them away which might have caused fatal injury to one of the employees. The counter FIR was also lodged next day by the Managing Director but no action was taken by the police. Learned counsel urged that keeping in view the above facts and circumstances of the case, the petitioners have a good case for enlarging them on bail on suitable or reasonable conditions. At the very outset, Mr.J.S.Guleria, learned Law Officer representing State, has pointed out that on the basis of the counter FIR a challan has been presented in the court against the accused who had caused damage in the factory premises. According to him, during the investigation it transpired that the striking employees resorted to violence only after the factory guards had opened fire and bullet injuries were caused to the complainant party and Amarjeet Singh had died. However, no such facts as pleaded now came forth during the investigation of the case that the protesting employees had become violent and attacked the guards or damaged any property to which the petitioners resisted and acted in self defence. Mr. Guleria, forcefully argued that the defence to which the petitioners have taken will be trashed out in a full dress trial. Further there is nothing on record to show that the stay orders were ever served upon the employees arrayed as defendants in the 6 suit. The learned Law officer further drew my attention to the police report of this case where the conclusion of the investigation has been summed up and pointed out the statements of the witnesses showing that after the gun firing incident, the employees became violent and caused damage to the factory premises, and FIR No.163 was got registered by the Managing Director of the Company on 1.7.2008 under sections 147, 148, 149, 323, 427, 341 and 435 of the Indian Penal Code. He further stated that the challan was also presented against him in the court for their trial. It is ventilated that the petitioners have committed a heinous offence and they have no case for bail. I have given my thoughtful consideration to the rival contentions of the learned counsel for the parties and have carefully examined the record. On the perusal of the police report and the documents appended thereto, prima-facie I did not find any circumstance at this stage which could be weighed in favour of the petitioners to record a finding that they had acted in right of private defence. While considering the bail, the court iner-alia has to consider other factors such as, the serious nature of crime and gravity of the circumstances under which such an offence was committed and its impact on society. Of course the grant of bail is totally a matter of discretion but it is well settled that it has to be exercised on well established judicial parameters. At this stage, the points taken by the learned counsel for the petitioners to support his view is the ultimate or possible defence of the petitioners which is required to 7 be thrashed out in accordance with law during the trial. Presently, there is nothing on record to show that the employees of the factory, who gathered outside the factory gate had resorted to violence or posed any danger by which the petitioners got apprehensive and acted in self defence as canvassed and projected during the arguments by the learned counsel for the petitioners. However, at this stage complete documentation on merits and demerits is to be avoided but in the facts and circumstances narrated above, in my opinion the petitioners have no case for bail, accordingly their request for bail is rejected and the bail applications are dismissed. Any observation made herein above, shall not be construed to have any expression of opinion on the merits of the case. The trial court shall decide the case on its own merits. January 7,2009 (Surinder Singh),J. (D)