Duman Singh vs Kashmira Singh

V.K. Bali, J.

Representation of one Dhuman Singh, resident of village Khassikaluan, District Ludhiana, received through post and addressed to the Chief Minister, Punjab with a copy of the Chief Justice of this Court, was treated to be a petition for cancellation of bail granted to Kashmira Singh in Crl. Misc. No. 15152M of 1994. The office registered it as Crl. Misc. No. 20265M of 1994. The consideration in this case is, thus, for cancellation of bail granted to Kashmira Singh by this Court on October 11, 1994.

The coaccused of Kashmira Singh, who was earlier declined bail by this Court, prays for the same in Crl. Misc. No. 15539M of 1994. This order shall, thus, dispose of both these petitions.

Before the matter is proceeded any further, the FIR, in which the two accused before this Court are involved, deserves to be noticed. The same reads thus :

"Stated that I (Dhuman Singh) belong to village Khali Kalan and do the work of cultivation. In our village Balwant Singh, Patwari of Mudian Kalan owned about 6 acres of land, which was being cultivated by Bant Singh son of Maula Singh of Mudian Kalan. About two years age, Balwant Singh Patwari died and Chamkaur Singh and Dalbir Singh sons of Bant Singh made some other woman to appear as Harbans Kaur widow of Balwant Singh and got a sale deed registered in their favour of the said land which was in the name of Harbans Kaur widow. On learning about this cheating, Harbans Kaur got a case FIR No. 295 dated 15.10.1991 under Sections 419, 420, 467, 468, 471 read with Section 120B IPC registered at Police Station Civil Lines, Ludhiana against Balbir Singh and Chamkaur Singh sons of Bant Singh residents of Mudian Kalan, which is still pending trial in the Court. Taking into account all the circumstances in her family, Harbans Kaur executed power of attorney in favour of Bachhitar Singh son of Giani Arjan Singh, Ex. MLA about this land. Apprehending some quarrel over this land, the local police initiated proceedings under Section 145 Cr.P.C. The SDM, Ludhiana, appointed Tehsildar as Receiver. The Tehsildar on coming to the spot in village Mundian Kalan told Bant Singh''s party that both the parties should not interfere with the said land but on the night of 28.5.1993 at some time Bant Singh''s party ploughed the said land and sowed paddy crop therein. Today at about 7/7.30 a.m., Gurmail Singh son of Balwant Singh, Jat, resident of Muliawal and Charan Singh son of Lal Singh, resident of Padhal came to my house and told that they have heard that Bant Singh inspite of order of appointment of receiver has cultivated the paddy crop in the aforesaid land. To find out if really paddy crop has been sown, we went to village Salu Bhaini, where Budh Singh son of Lal Singh, Jat, resident of Chari Kalan and Gurdip Singh son of Jaswant Singh residents of Mundiana Kalan were standing. We stayed there for sometime and found that Bant Singh and others had really sown paddy in that land. On this, we left that place. I, Bachitar Singh, Charan Singh and Gurmail Singh were in Car No. PBW 2282 and in the other car Budh Singh and Gurdip Singh were there. We left that place and when after passing Kuhara we reached chowk of village Jhabhewal, we found that a jeep was parked in the chowk and near that Chamkaur Singh son of Bant Singh resident of Mundian Kalan carrying Dang; Kashmir Singh carrying .315 bore revolver; Zara Singh armed with .455 bore revolver, Harjit Singh armed with Dang, all sons of Bant Singh and Bant Singh son of Maula Singh, residents of Mudian Kalan carrying Dangs were standing. On seeing them, we stopped our Ambassador cars and Budh Singh who carried a Dang went to Bant Singh''s party and asked them as to why they had cultivated the land when there was an order of appointment of Receiver and that we would make a complaint to the officers. As soon as Budh Singh told so, Harjit Singh son of Bant Singh alias Jit Singh gave a dang blow on the head of Budh Singh and Bant Singh raised Lalkara saying catch hold, they should not go safe and that who are they to stop us from ploughing our land. On this, I carrying my 12 bore rifle; Bachhitar Singh armed with lathi came out of the car and in the meanwhile Budh Singh gave dang blow on the head of Chamkaur Singh. It may be about 11/11.45 a.m. On this, we all exchanged Dang and Soti blows and during this struggle 38 bore revolver of Chanan Singh fell down and he took my .12 bore gun. Gurmail Singh son of Balwant Singh and Charan tried to save us. During this, Kashmir Singh fired a shot from his 315 bore rifle on Charan Singh and in order to save himself Charan Singh also fired from his A12 bore rifle on Harjit Singh which hit him near his left ear. Harjit Singh fell down on the spot. In the meanwhile, Kashmir Singh fired another shot which hit Charan Singh on his left side of the chest and Charan Singh fell down and died. Tara Singh fired from his .455 bore revolver towards Bacchitar Singh, who also fired to save himself with his 12 bore rifle which stuck in the abdomen of Tara Singh. On this Chamkaur Singh out of anger threw his Dang took .315 bore rifle from Kashmir Singh and fired at Bachhitar Singh which hit him on his left side of heart. Bachhitar Singh fell down on receipt of the injury and died. Bant Singh and his party alongwith their weapons and injured person went away from the spot. Jawans of CRPF reached the spot. I have come with them leaving Gurmail Singh at the spot to guard the dead bodies. I was going to lodge the report that you met in the way. I have made the above statement to you which has been read over to me and is correct. Action be taken."

Earlier in point of time Chamkaur Singh prayed for bail in Crl. Misc. No. 9832M of 1993 which came up for hearing before J.B. Garg, J. on September 1993 when the following order was passed :

"Heard. As regards Chamkaur Singh, his application for bail is disposed of as not pressed.

As regards Tara Singh son of Bant Singh, it is ordered that he be enlarged on bail to the satisfaction of Chief Judicial Magistrate, Ludhiana."

Later, Chamkaur Singh once again tried his luck for grant of bail vide Crl. Misc. No. 17448M 1993 which once again came up for hearing before J.B. Garg, J. on December 23, 1993 in which the following order was passed :

"Heard. Dismissed."

The accused aforesaid once again filed an application for grant of bail vide Crl. Misc. No. 12364M of 1994 which too came up for hearing before the same Bench and was dismissed on August 1994. It is thereafter that Kashmira Singh applied bail vide Crl. Misc. No. 15152M of 1994 wherein all that was mentioned was that his coaccused Chamakaur Singh bad filed Crl. Misc. No. 9832M of 1993 which was dismissed by this Court as not pressed on September 14, 1993. There was no mention at all that Chamkaur Singh had filed two more bail applications which were dismissed on December 23, 1993 and August 19, 1994 on merits.

When the matter for grant of bail to Kashmira Singh came up before me on October 11, 1994, I passed the following order :

"There are two cross versions and on both sides one person had died. As to which of the party i.e. accused of this case or the accused of the case in which FIR has been lodged by the accused, is/are aggressor, is a moot point. Without expressing any opinion on the merits of this case, I deem it a fit case to grant bail to the petitioner to the satisfaction of the CJM, Ludhiana."

Obviously, being encouraged by a favourable result with regard to bail of Kashmira Singh, Chamkaur Singh has filed yet another application for grant of bail which, as referred to above, is Crl. Misc. No. 15539M of 1994.

The FIR, reproduced above, clearly shows that it is Chanan Singh and Bachhitar Singh, who died in the occurrence from one side. It is strenuously argued by Mr. Mattewal, learned Senior Advocate, appearing on behalf of the complainant that in the present case the investigation was conducted first by Dy. Supdt. of Police and thereafter by Inspector General and Dy. Inspector General of Police and in all the enquiries it was found that the accused were aggressors as also that while obtaining bail Kashmira Singh deliberately concealed the fact from the Court that his coaccused Chamkaur Singh, against whom there are similar allegations, was declined bail twice over on merits. It is alleged in the letter which was received by this Court, reference of which has been made above, and Mr. Mattewal also vehemently contends that Kashmira Singh, who has been enlarged on bail is openly threatening Dhuman Singh, Gurmail Singh, Budh Singh and Gurdip Singh, who are witnesses of the occurrence that they shall be done to death.

Mr. R.S. Cheema, learned Senior Advocate, appearing on behalf of the accused, however, contends that a bare perusal of the FIR is suggestive of the fact that the accused only exercised the right to defend their persons and, therefore, this Court rightly observed that as to who is the aggressor would be a moot point at the time of trial. He further argues that the allegation of threatening the witnesses is a madeup affair.

I have heard learned counsel for the parties and gone through the records of the case. The Court refrains itself from expressing any opinion on the merits of the case from the perusal of the FIR alone. Any opinion, even prima facie, expressed at this stage and by this Court would, obviously, prejudice either of the parties at the time of trial. However, in considered view of this Court, whereas bail application of Chamkaur Singh deserves to be rejected, having been rejected twice over on merits and there being no change in circumstances whatsoever, the bail granted to Kashmira Singh by this Court on October 11, 1994 deserves to be cancelled primarily on the ground that material facts were concealed from this Court. There were two deaths from the complainant side and one from the accused side. Also, the Court was under the impression while granting bail to Kashmira Singh that two crossversions are before it and both the parties have been challenged by the police whereas it reveals now that after investigation by different high ranking police officers, police chose to file challan only against the accused and not against the party. True, that a complaint has been lodged against the complainant party as well but, as mentioned above, the Court was under the clear impression that the police has put in two challans, one against the complainant party and the other against the accused party.

The matter does not rest there. Chamkaur Singh, as mentioned above, was declined bail twice over on merits by this Court and there is hardly any difference in allegations made against him and Kashmira Singh. Declining of bail to coaccused was a material fact and should have been disclosed. Strangely, while filing the application for grant of bail, Kashmira Singh mentioned about only one application filed by Chamkaur Singh which was dismissed as not pressed. He conveniently withheld the information from this Court that Chamkaur Singh was declined bail twice over on merits. Obviously, if he knew the fate of one application, he knew about the fate of other two applications as well.

It is true that normally bail granted on merits should not be cancelled unless there is reason to believe that the accused are threatening the prosecution witnesses or tampered with the prosecution evidence in some other manner but in considered view of this Court if bail has been allowed on suppression of some material facts, the same can be and deserves to be cancelled. As mentioned above, the court was given to understand that there are two crossversions/two challans before the Court as also that bail application of Chamkaur Singh was dismissed as having not been pressed. Obviously, the considerations on the said facts would have been entirely different.

In the circumstances, referred to above, whereas prayer for bail of Chamkaur Singh is declined, the bail granted to Kashmira Singh in Crl. Misc. No. 15152M of 1994 on October 11, 1994 is cancelled. In totality of the circumstances of this case, it is however ordered that the trial Judge would expedite the trial.

JUDGMENT accordingly.