Balwinder Singh vs Union Territory, Chandigarh

Sukhdev Singh Kang, J.

Balwinder Singh has filed this application under Section 439, Criminal Procedure Code, for grant of bail in case of F.I.R No. 379 of 1986, Police Station East, Chandigarh registered under Sections 392/397. Indian Penal Code; Section 25 of the Arms Act and Sections 3 and 4 of the Terrorist and Disruptive Activities (Prevention) Act, 1985 (hereinafter called `the Act'').

The allegations against the petitioner as spelled out from the First Information Report and other material on the record, in brief are that on September 8, 1986, Smt. Jaswant kaur wife of Shri Harbhajan Singh was present in her house No. 612, Sector 78, Chandigarh. Round about 10/11 a.m., a clean shaven boy came to the house and examined the V.C.R., which had been advertised for sale. 11/7 minutes thereafter, two boys one clean Shaven and another a Sikh came there. They went first to the room where the V.C.R. was lying and then forcibly went to the other room and tried to procure the keys of the almirah and a box from Smt. Jaswant Kaur. The latter resisted and one of the boys hit Smt. Jaswant Kaur on (he fore head With the butt of his pistol. They ran away taking the V.C.R. with them Smt. Jaswant Kaur raised an alarm, which attracted a number of persons. The accused brandished their pistol and were successful in running away.

The petitioner is in custody since 8th September, 1086 ''On a bail application moved by the petitioner, the Designated Court in relation to the offences, under the Act gave the following finding :

"The first point to be determined is whether there is any case under Section 3 and 4 of the Terrorist and Disruptive Activities (Prevention) Act 1985 against the accused. I am of the view that from the mere act of firing at the time when the public had collected, it cannot be inferred that the accused had committed an offence under the Terrorist and Disruptive Activities (Prevention Act. 1985 within the jurisdiction of this Court the contention of the learned P.P. that by, firing, the accused created terror in the mind of the people and thereby committed an offence under the Terrorist and Disruptive Activities (Prevention) Act cannot be accepted, because in every crime in such firearm is used, terror is bound to be created. So I am satisfied and hold that the accused has not committed any offence under Sections 3 and 4 of the Terrorist and Disruptive Activities (Prevention) Act, 1985."

I am in agreement with these conclusions, because they are fully borne out from the material on the record. This also appeals to the offence under section 6 of the Act. The petitioner is alleged to be in possession of a pistol, for which he had a valid licence. He had not used the pistol to commit any offence under the Act. So, the provisions, of section 6 are not, attracted.

So far as the offence under Section 392/397 of the Indian Penal Code is concerned, the petitioner is entitled to bail. Though the petitioner has been in police and judicial custody for all these days, yet the prosecution has not cared to got the petitioner identified by the eyewitnesses in a test identification parade. It is the prosecution case that the prosecution witnesses did not know the accused previously. The failure of the prosecution to get the petitioner identified in the test identification parade is a major infirmity in the case.

For the foregoing reasons, I allow this application and grant bail to the petitioner to the satisfaction of the Chief Judicial Magistrate, Chandigarh who will take an undertaking from the petitioner that he will not commit any offence while on bail. Anything said in this order is not an expression of opinion and should not influence the trial Court.