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 2Uncha, 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”