Mohd. Aslam Khan vs State of U.P.

R.C. Deepak, J.—The Bail Application No. 11035 of 2006 of accused-applicant Mohd. Aslam Khan and Bail Application No. 11586 of 2006 of accused-applicant Dharamveer Singh for their release on bail in Special Case No. 61 of 1999 under Sections 330, 384, 218, 211, 200, 197, 195 and 109, I.P.C. and Section 25 of Arms Act arising out of Case Crime No. 118 of 1996 for convenience are heard together and are disposed of by a common order.

The peculiar facts of the case giving rise to the present bail applications are that it is alleged that on 8.2.1994 one Harish Chandra Arora and his two sons named Vinay and Sanjay made murderous assault upon one Raj Kumar Arora, who suffered injuries on his person and in this regard he lodged the first information report registered as Case Crime No. 52 of 1994 u/s 307, I.P.C. and Section 25 of Arms Act against them. The investigation into the case was conducted by R. K. Chauhan, S.S.I. of the local police, who submitted the charge-sheet on 28.2.1994 u/s 307, I.P.C. and Section 25 of Arms Act against the above-named accused. The facts further indicate that the charge-sheeted accused Harish Chandra Arora, being an Advocate/property dealer, exercised his influence and he succeeded in getting the matter to be entrusted with C.B.C.I.D. for reinvestigation. As a consequence, the matter was investigated by the Investigating Officer of the C.B.C.I.D., who found that a false case was lodged by Raj Kumar Arora and submitted the final report in the case. The informant/Raj Kumar Arora filed protest petition against the submission of final report, but the learned Magistrate rejected the protest petition and accepted the final report on 1.6.1996, that being aggrieved of the order of acceptance of final report, the informant named above preferred a Criminal Revision No. 271 of 1996 and the same is still pending in the Court of Session Judge for final disposal. The Investigating Officer of the C.B.C.I.D. after submission of the said final report, lodged the aforesaid first information report against the applicants and certain others alleging therein that the informant Raj Kumar Arora did not suffer any firearm injury, as alleged, but the police/the accused in the first information report falsely implicated Harish Chandra Arora in the case. It is further alleged that Harish Chandra Arora was arrested by the police concerned from his house and he had caused injuries. Rs. 2 lacs was demanded as illegal gratification from him to release him and Rs. 400 was received as cost of the diesel of the vehicle. The investigation into the case at hand was conducted and the charge-sheet was submitted. The accused Ved Singh and Dharamveer Singh moved a Criminal Misc. Application No. 10483 of 2004 u/s 482, Code of Criminal Procedure for quashing the charge-sheet, but this Court did not agree to quash the charge-sheet and directed them to appear before the trial court and in case an application for their release on bail is made, the same shall be disposed of expeditiously, that the order so passed by this Court was not complied with. The facts further reveal that the accused-applicants Mohd. Aslam Khan, Dharamveer Singh and co-accused Ved Singh filed Criminal Misc. Application No. 944 of 2006 u/s 482, Code of Criminal Procedure with a prayer that no sanction for prosecution has been granted, therefore, the trial court has no jurisdiction to take cognizance of the offence. This Court vide order dated 24.1.2006, directed the trial court to dispose of the application of the applicants for their discharge, if any, within a period of one month from the date of its filing and also stayed the execution of order issuing non-bailable warrant against them. The above-named Harish Chandra Arora made an Application No. 47920 of 2006 for recalling the order dated 24.1.2006 on the ground that the accused Ved Singh and Dharamveer Singh had already made an Application No. 10483 of 2004 and in Criminal Misc. Application No. 944 of 2006 an affidavit has been filed by Ved Singh that no earlier petition was filed, therefore, concealing the facts and playing fraud, the order dated 20.1.2006 was obtained. This Court (Hon''ble Justice Vinod Prasad, J.) taking into account the entire facts and circumstances of the case, recalled the order 24.1.2006, vide his order dated 9.3.2006 and directed the trial court to initiate coercive measure for the arrest of the above-named accused and also directed that a case in this regard be also registered against them. As a consequence, the N.C.R. No. 15 of 2006 under Sections 193, 136 and 200, I.P.C. has been registered at police station Sadar Bazar against the accused concerned. The accused concerned made an application for recalling the order dated 9.3.2006, but this Court vide order dated 20.3.2006, did not agree to do so. The accused-applicants and Ved Singh approached the Hon''ble Apex Court by way of Special Leave to Appeal (Criminal) No. 1598 of 2006. The Hon''ble Apex Court vide its order dated 17.4.2006, disposed of the petition with the direction that the prayer for bail of the Petitioners/the accused could be disposed of on merit in case they put in their appearance before the trial court. In compliance thereof, the accused-applicants have put in their appearance before the trial court and made an application for their release on bail, but the same was rejected and the present bail applications have been filed before this Court already referred-to-above.

The accused-applicants have filed the copies of the first information report, injury report and certain other documents in support of their bail applications. The counter-affidavit has been filed by the complainant annexing certain relevant documents in support thereof. Rejoinder-affidavit has also been filed, but no counter-affidavit has been filed by the State.

I have heard Sri Parvez Alam, learned Counsel for the accused-applicant Mohd. Aslam Khan and Sri Viresh Misra, learned senior counsel with the assistance of Sri Amit Misra, learned Counsel for the accused-applicant Dharamveer Singh, Sri Ramesh Sinha, learned Counsel appearing on behalf of Harish Chandra Arora/the aggrieved person, learned Additional Government Advocate for the State and perused the records produced before me.

For the fair and proper disposal of the present bail applications, the reference of the injury reports of the alleged injured Raj Kumar Arora and Harish Chandra Arora are relevant. Consequently, the same are accordingly reproduced as under :

Injury report of Raj Kumar Arora

Examined Shri Raj Kumar S/o Asha Ram 48 years H. No. resident of Makkhan Colony, 21 Near Sophia Bada School P/s Sadar Bazar, Saharanpur on 8.2.1994 at 12.30 p.m.

B/B C.P. No. 975 Gopi Chand P/s Sadar SRF M-1. Black mole on Rt. side chin upper part 2 cm. below angle of mouth.

Injury (1). Firearm wound of Entry 1 cm. x 1 cm. depth and rubbed on Rt. supraclaricular region, blackening present margin inverted fresh bleeding present kept u/o for x-ray chest and neck.

(2) L.W. 1.5 cm. x .5 cm. x muscle deep c traumatic swelling 5 cm. x 3 cm. on Rt. cheek bone fresh bleeding present.

(3) Reddish contused swelling 2 cm. x 1 cm. on Rt. side face.

(4) Lacerated wound 1.5 cm. x .5 cm. x muscle deep on Lt. upper lip just below the Aloe of Lt. Nose fresh bleeding present.

(5) L.W. 1 cm. x .5 cm. x muscle deep on back and middle of Lt. Index finger fresh bleeding present. Kept u/o for x-ray.

(6) L.W. 1 cm. x .5 cm. x muscle deep on Palmer arfect in middle of Lt. Index finger. Fresh bleeding present.

(7) An Abrasion 1 cm. x .5 cm. on epigenetic region 18 cm. below xiphi structure injury No. 1 caused by firearm. Injuries No. 2, 3, 4, 5 and 6 are caused by blunt hard object. Injury No. 7 caused by friction against hard object. Injuries No. 1 and 5 kept u/o Adv. X-ray. All are fresh in nature. Injuries No. 2, 3, 4, 6 and 7 are simple in nature.

M1. Black mole on Rt. side chin upper part 2 cm. behind angle of mouth.

...: Chest, Neck and Left Index finger Hospital....

Chest and Neck: Fracture....

Left Index Finger: Fracture back of middle phalange of left Index finger is seen.

Injury report of Harish Chandra Arora

10.2.1994 at 6.10 p.m. Examined U.T. Harish Chandra Arora, advocate aged about 55 years S/o Umrao Singh R/o 19B Hakikat Nagar P.S. Sadar Bazar, Saharanpur.

M-1. Black Mole at (R1) face 2 cm. to the right of (R1) nostril.

Injuries :

(1) Abraded contusion 8 cm. x 7 cm. on donsum of (R1) hand. Scab present.

(2) Contused swelling 10 cm. x 9 cm. on donsum of (L1) hand colour bluish red.

(3) Contusion 12 cm. x 6 cm. on radial aspect of (L1) forearm and lower 1/3 of forearm.

(4) Contusion 6 cm. x 5 cm. on front of (L1) forearm lower 1/3 colour bluish-red.

(5) Contusion 5 cm. x 3 cm. ulnar aspect of (L1) forearm lower 1/3 colour bluish-red.

(6) Abraded contusion 6 cm. x 4 cm. On back of (R1) elbow. Scab present. Soft in nature.

(7) Contusion 60 cm. x 33 cm. on back of whole of (L1) thigh and buttock and sacral region. Colour bluish-red.

(8) Contusion 39 cm. x 33 cm. in (R1) sacral region, whole of buttock and upper half of thigh. Colour bluish-red.

(9) Multiple abrasions14 cm. x 12 cm. on (R1) buttock. Soft scab present.

(10) Contusion 31 cm. x 13 cm. on back of (L1) leg.

(11) Contused swelling 16 cm. x 13 cm. on front of (L1) knee.

(12) Contusion 19 cm. x 16 cm. in front of (R1) lower thigh and knee. Colour bluish-red.

(13) Abrasion 8 cm. x 4 cm. on lateral aspect of (R1) knee.

(14) C/o Pain back lumbar region and (L1) side front of chest but there is no external injury seen.

(15) Contused swelling 7 cm. x 5 cm. on palm of (R1) hand.

(16) Contused swelling 6 cm. x 4 cm. on fingers of (L1) hand.

Injuries are kept under observation.

All of them caused by blunt object. Probable duration 2 days of all injuries except injuries No. (9) (13) (6), whose duration is about half day to one day.

Both of the alleged injured alleged that they have sustained injuries on 8.2.1994 at 12.00 noon. Raj Kumar Arora lodged the first information report the same day at 12.20 p.m. and he was medically examined at 12.30 p.m. The date of alleged occurrence, as mentioned in the first information report lodged on behalf of Harish Chandra Arora, is also 8.2.1994 at 12.00 noon and he was medically examined on 10.2.1994 at 6.10 p.m. The report was lodged on 7.4.1994. S.S.I. R. K. Chauhan submitted the charge-sheet on 28.2.1994, against Harish Chandra Arora. The application for transferring the investigation by the brother of Harish Chandra Arora was made on 20.4.1994. An order to entrust with the investigation to C.B.C.I.D. was passed by the State Government on 5.5.1994. The State Government appears to have withdrawn the case u/s 25 of Arms Act in favour of Harish Chandra Arora. A petition against the order of withdrawal of this case has been filed before this Court and the same is still pending.

There is controversy with regard to the presence of injury No. 1 on the person of Raj Kumar Arora ascertained to be of firearm by Dr. D. K. Sharma, who had examined him, but he has not been interrogated to disclose the basis of his mentioning injury No. 1 to be of firearm. The nature and character of such injury has been challenged by other doctors. These injuries and the allegations in this regard are the subject-matter of the trial/judicial investigation. No finding regarding their truthfulness is warranted at this stage.

In above set of the matter it cannot be conclusively presumed at this stage that a false case was lodged by Raj Kumar Arora, that false evidence was collected, that the accused/Harish Chandra Arora sustained injuries in the manner as alleged specially when he did not appear to have lodged any report. The origin of the F.I.R. is the result of the re-investigation by the C.B.C.I.D. Even after the submission of charge-sheet by the local police against Harish Chandra Arora and his two sons, that the investigation by the C.B.C.I.D. is an independent one, that the State Government hurriedly withdrawn the case of an offence punishable u/s 25 of Arms Act. The writ petition against this order is pending in this Court as well as the criminal revision against the submission of final report.

The statements of Harish Chandra Arora and his wife Smt. Krishna Devi indicate that Smt. Krishna Devi and Manju are real sisters. Manju is younger and is married to Raj Kumar Arora. The relations of Raj Kumar Arora and Harish Chandra Arora were not cordial because of the alleged illicit relations of Harish Chandra Arora with Manju. In this continuation, it is pertinent to mention here that Raj Kumar Arora alleged to have assaulted Harish Chand Arora in the year 1992 and in this regard a case as Case Crime No. 137 of 1992 u/s 307, I.P.C. and Case Crime No. 138 of 1992 u/s 25 of Arms Act were registered against Raj Kumar Arora and the same is still pending for trial.

Regarding playing fraud by accused Dharamveer Singh and Ved Singh, a case as Case Crime No. 15 of 2006 has already been registered against the accused-concerned referred-to-above. The law will take its own course in this regard.

I have given my thoughtful consideration to the arguments of the learned Counsel for the parties and the facts and circumstances of the case. The accused-applicants are police personnels. They have approached the Hon''ble Apex Court for redressal of their grievance. The Hon''ble Apex Court was kind enough to direct that their bail applications shall be decided on merit subject to their appearance in the trial court. In compliance thereof, the present bail applications have been heard. The applicants are still in police service and they are languishing in jail in the case at hand. There is no likelihood of their absconding or tampering with the prosecution witnesses, if released on bail.

In above view of the matter and in the interest of justice and equity both, I arrive at the conclusion that the accused-applicants have made out a case for their release on bail.

Let applicants Mohd. Aslam Khan and Dharamveer Singh involved in Special Case No. 61 of 1999 and Case Crime No. 931 of 2006 respectively under Sections 330, 384, 218, 211, 200, 197, 195 and 109, I.P.C., Section 7/13 of Prevention of Corruption Act and Section 25 of Arms Act Police Station Sadar Bazar, district Saharanpur, shall be released on bail on their furnishing the personal bonds with two sureties each in the like amount to the satisfaction of the Court concerned.

They shall furnish an undertaking also before the trial court that they will not indulge in any criminal activities and will not cause either any threat or any physical violence to the injured/complainant and their family members and to the witnesses of the case. If any such report is made by any of the above, person either to the Court or the police, it shall be properly inquired into and if any substance therein is found, it shall be open for the court below to report to this Court so that the bail may be cancelled.