High Court Punjab-Haryana High Court

Jagmohan Dyal Singh vs State Of Punjab on 21 August, 2008

Punjab-Haryana High Court
Jagmohan Dyal Singh vs State Of Punjab on 21 August, 2008
Criminal Misc. No. M-21176 of 2008                                    1




     In the High Court of Punjab and Haryana, at Chandigarh.


                  Criminal Misc. No. M-21176 of 2008

                      Date of Decision: 21.8.2008


Jagmohan Dyal Singh
                                                            ...Petitioner
                                 Versus
State of Punjab
                                                          ...Respondent

CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.

Present: Mr.K.T.S.Tulsi, Senior Advocate
         with Mr. Manish K. Sayal, Advocate
         for the petitioner.


Kanwaljit Singh Ahluwalia, J. (Oral)

The present petitioner has been nominated as accused in

case FIR No. 54 dated 2.6.2008 registered at Police Station Goindwal

Sahib, Tarn Taran, under Section 304 IPC.

The petitioner, as per the prosecution, is alleged to have fired

a shot, which hit deceased on the back of his neck. For ready

reference, translated FIR which has been made part of the paper book is

reproduced below:-

“Statement of Shamsher Ansari, s/o Sadiq Ansari,

Resident of Ganj Banjar Khada, Distt. Khushi Nagar,

UP aged 18/19 years, now resident of Amb, Railway

Fatak, Fatehabad. Stated that I am the resident of

aforesaid address. Today time would be 2½ -3

PM that Jaggu s/o Madan Lal Mehra, resident of
Criminal Misc. No. M-21176 of 2008 2

Uncha, Distt. Kapurthala and two other persons

were also with him, who were preparing Bhang in

the orchard of Mango. I and my companion Sattu

tried to stop them for preparing Bhang and not to

pluck the mangoes. Jaggu who was armed with

Datari came towards me and he abused me. In the

meantime, Jag Mohan Dayal Singh @ Beena s/o

Ravishar Singh Ahluwalia, resident of Fatehabad,

who is the owner of orchard came and he told him

all the incident and on this Jagmohan Dyal Singh

asked him that why they do the work of Bhang in his

orchard and why they pluck mangoes and due to

that there was some altercation between both of

them. Then, Jag Mohan Dyal Singh fired a shot from

his revolver, which hit on the back of neck of Jaggu

and he fell down and after that both of them ran

away. Then Jag Mohan Dyal Singh @ Beena put

Jaggu in his Gypsy bearing regn. No. PB-63-B-2997

and took him to Tarn Taran Hospital and later I

came to know that Jaggu died while reaching in the

hospital. The reason for dispute is that Jag Mohan

Dyal Singh has stopped Jaggu etc. from making

Bhang and plucking of mangoes. I have heard my

statement, which is correct. LTI Shamsher Ansari”.

After reading the FIR, counsel for the petitioner has made

threefold submission. Firstly, it has been contended that it is the property
Criminal Misc. No. M-21176 of 2008 3

of petitioner where the deceased had come and when restrained he took

out a dattar and which led the petitioner to fire a shot from his revolver.

Therefore, it has been contended that in the present case at the most

petitioner can be held liable for exceeding the right of self-defence of life

and property. To fortify the submission, counsel for the petitioner has

relied upon Mahabir Chaudhary v. State of Bihar (1996) 5 Supreme

Court Cases 107 and has drawn my attention to paras 9, 11 and 12 to

contend that law does not require any citizen to act like a coward and

run form the spot and situation when his property and life is under

threat. It has been contended that right of self-defence cannot be

weighed in golden scales.

During course of arguments, reliance has been also placed on

Gudikanti Narasimhulu and Others v. Public Prosecutor, High

Court of Andhra Pradesh (1978) 1 Supreme Court Cases 240

wherein a question was considered whether bail or jail should be the

maxim which could be invoked by the Courts. While deciding

anticipatory bail, the Court has to be guided by the principle whether bail

will hamper investigation and maintain the balance between the right of

accused to get bail and necessity of the Investigating Agency regarding

custodial interrogation.

Counsel for the petitioner has also relied upon Shri

Gurbaksh Singh Sibbia and Others v. State of Punjab (1980) 2

Supreme Court cases 565 to contend that provisions under Section

438 Cr.P.C. are not eclipsed by Sections 437 and 439 Cr.P.C.

Second argument raised before me is that there are material

discrepancies in the prosecution case. It was contended that in the FIR
Criminal Misc. No. M-21176 of 2008 4

it has been recorded that accused took the deceased in his gypsy to

Tarn Taran Hospital, It was submitted that in the post mortem report in

the hospital as to in column who brought the dead body, it has been

recorded that the dead body was brought by two constables of Police

Station Goindwal Sahib and the dead body was brought at 12.30 P.M.

on 3.6.2008. My attention has also been drawn to the register

maintained by the hospital wherein it has been written that on 2.6.2008

at 3.45 P.M. an unknown person’s dead body was brought by accused

Jagmohan Dayal. It has been stated that in the present case occurrence

took place on 2.6.2008 at 2.30 P.M. or 3.00 P.M.

This Court observed during course of arguments that in that

case Section 106 of the Indian Evidence Act will be attracted as in the

hospital register and in the FIR it has been stated that the deceased was

taken by the accused in his gypsy. When the dead body and the

accused left together, law demands that it is for the accused to explain

as to from where the dead body was brought and as to why delay took

place. This part can only be disclosed by the accused during

investigation.

Third argument raised before me is that the petitioner has

inimical relations with the investigating agency. They approached the

Human Rights Commission to urge that the investigation conducted in

this case is not fair and impartial and the Investigating Officer is

inimically deposed towards the petitioner. The petitioner is at liberty to

make a prayer under Section 482 Cr.P.C. for change or transfer of

investigation. So far this Court is concerned, it has to examine to the

limited extent whether the petitioner is entitled to pre-arrest bail or not.
Criminal Misc. No. M-21176 of 2008 5

I am of the view that in the present case, petitioner is not

entitled to pre-arrest bail and custodial interrogation of the petitioner is

required.

Anything stated herein shall not be construed as expression of

opinion on the merits of the case. Petitioner, if so advised, may

approach the concerned Court for regular bail.

At this stage, a prayer has been made that in case petitioner

surrenders and apply for regular bail, the same may be considered on

the same day.

This prayer can only be accepted to the limited extent. In case

petitioner surrender before the trial Court on or before 27.8.2008 and if

the prosecution desires the police remand and the same is granted, after

the police remand is over, bail application of the petitioner shall be

decided within five days.

With these observations, the present petition is disposed off.

(Kanwaljit Singh Ahluwalia)
Judge
August 21, 2008
“DK”