ORDER
Mohd Shamim, J.
1. This is an application by the petitioner for release on bail.
2. Learned counsel for the petitioner Mr. K.K.Sud, has argued with great zeal and fervour that the petitioner is an innocent person. He has been in custody since July 31, 1997. There is absolutely no evidence against the petitioner. The petitioner is simply a Head Constable. He is under law bound to obey his officers. He has got no decision-making power. He simply carried out the orders of his superiors. He has got no reason to suspect correctness on bona fides of the orders issued by his superiors. The petitioner in thus protected under sections 76 and 79 of the Indian Penal Code. The petitioner is neither inimically disposed towards the deceased persons nor did he harbour any ill-feeling towards them. Whatever has happened in the present case at the most can be said to be a case of bona fide mistake in believing that he was justified in firing at the command of his superiors.
3. According to the case of the prosecution there were two entry and exit wounds corresponding to each other on the body of the deceased Jagjit Singh as per the post mortem report. The deceased Jagjit Singh was cremated on April 2,1997. His ashes were collected on April 3, 1997. A lead piece described as the ‘jacket of a bullet’ is alleged to have been recovered from the ashes of the deceased. The said piece was sent to the CFSL on April 22,1997. There is no satisfactory evidence with regard to the proper custody of the said piece. During the intervening period the post mortem
report conducted on the dead body of the deceased Jagjit Singh showed that no foreign object was found in his body during the course of the post mortem. Thus the recovery of the above lead piece from the body of the deceased is very much doubtful. It were the deceased who fired on the police party initially. The police officers, including the petitioner, fired only in their defense. There was a secret information with the police that the notorious gangster Yaseen would be visiting Delhi on March 31,1997. The police thus wanted to arrest him on the receipt of the said
secret information. Shri Yaseen and Jagjit Singh resembled each other. The police thus took the occupants of the car as the notorious criminal Shri Yaseen and his associates. Thus it was under the said bona fide mistake that they were fired upon. After the incident the police party informed the SHO, Connaught Circus, as well as the Police Commissioner with regard to the injuries sustained by the police party at the hands of the occupants of the car i.e. the deceased persons. Inspector Anil Kumar lodged FIR with the Connaught Circus police station. FIR No. 448/97 under sections 307/353 IPC,
and sections 25/27 of the Arms Act was recorded
4. Learned counsel for the CBI, Mr. Anil Kumar Gupta, while opposing the bail application, has argued that a perusal of the FIR No. 448/97 lodged by the police party with the Connaught Circus police station reveals that there is no mention of the names of the criminals therein. Furthermore, there is no mention therein that any weapon was ever recovered from the Maruti car wherein the deceased Jagjit Singh and Pradeep Goel and the injured Tarun were travelling. All the three occupants of the car are respectable businessmen. The police had an opportunity to arrest the occu-pants of that car if they thought that they were the notorious criminals. Yaseen and his associates, near Mother Dairy, Patpar Ganj, Delhi where they are alleged to have taken ice-cream and subsequently at Dena Bank, Connaught Circus, where the car was stopped. But for the reasons best known to them they did not do so.
5. As per the statement of the injured Tarun there was no weapon with the deceased persons. The injury alleged to have been sustained by Constable Sunil Kumar is as per the report of the ballistic expert is from a .38 revolver. Admittedly, there was no such revolver with the deceased persons. The other injury on the person of Constable Subhash as per the report of the ballistic expert could have been caused by a 7.62 rifle (AK.47 Rifle). The same was also with the police party. Thus the members of the police party sustained injuries during the course of cross firing on the Maruti
car in occupation of the deceased persons. What is alleged to have been recovered from the car was a pistol 7.65 bore.
6. As per the Photographer S/Shri Rajeev and Syed Ahmad of the Statesman, they found at the time of the occurrence the front window pane intact This goes to show that no firing was done from inside the car by Jagjit Singh. The report from the police station which has been placed on the file goes to show that Jagjit Singh was not having any licence to possess an arm. Furthermore, there, are statements of PWs Dinesh Gupta and Rajeev Gupta that the deceased Goel was not having any licence. Consequently he did not have any arm with him.
7. According to Mr. Gupta this is a case of cold blooded murder where not only one but two precious human lives were lost i.e. Jagjit Singh and Pradeep Goel, and the third person known as Tarun was seriously injured. Hence the petitioner is not entitled to an order of bail.
8. Considering the above facts and circumstances I do not think the present case is a fit case for bail. I do not see any force in the present petition. Dismissed.