Swaran Kumar and others vs State of Punjab

B.S. Yadav, J.

The present petitioners have been arrested in a case under section 307 and other sections from the Indian Penal Code, registered at Police Station Malerkotla, vide First Information Report No. 80 dated 18.6.1983, recorded on the basis of the statement of Dilshad.

The brief facts that prior to the above First Information Report, another First Information Report No. 79 dated 17.6.1983 was recorded at Police Station Malerkotla at 10.30 p.m. on the statement of Raj Kumar son of Sant Ram. In that report, the allegations were on that day about 9.20 p.m. he (i.e. the informant) was present at his house. His brotherinlaw, Verinder Kumar resident of Muktsar and Pardeep Kumar and Verinder Kumar residents of Malerkotla were also present there. Narinder Kumar alias Mannu and Vinod Kumar, brothers of Raj Kumar came running into the house and closed the door and told the persons present there that Bhina, Dilshad and their associates Latif and his brother Bashir alias Tundand Yasin has caused them injuries. In the meantime, the above named persons, along with Suleman and Mali sons of Sadar Din, Khalil, Haji Kachru who were armed with Gandasas and Lathis opened the door by putting their hands inside. When Raj Kumar objected, Yasin and Latif Mohammad felled him to the ground and the above persons caused him injuries with sticks and Gandasas. Thereafter the above named parsons with a mob surrounded the house and entered into it and caused injuries to them. Then, the mob, some of whom had guns with them, fired 35 or 40 shots in the air. They also threw brickbats. Thereafter, those persons threw burning tyres soked with kerosene oil, in the compound of the house.

On the next day, on the basis of the statement of Dilshad, FIR No. 80 was registered at 11 a.m. According to that version on 17.6.1983 at 9.15 p.m. Sant Ram, Manohar Lal, Vinod Kumar, Raj Kumar son of Sant Ram, Vinod Kumar, Raj Kumar and Mannu, Charanjit Pahalwan, Raj Kumar son of Chanan Ram, Billa Gobarewala, Amrit Lal Gupta and Swaran Kumar were standing near Jindia Medical Store, outside Delhi Gate. They were under intoxication of liquor and were hurling dirty abuses upon Muslims. They were also challenging the Muslims to come out. In the meantime, Mohammad Sayeed, Abdul Aziz, Nassar Hussain, Azar Diwana, Sabar Ali, Mohd Akhtar, Saleem Walid Sleem son of Mohd. Bashir Mohd. Anwar, Mohd. Yamin came to the spot When Dilshad tried to stop the above persons from hurling abuses, Vinod Kumar attacked him with a knife and caused him injuries on his upper lip. Four teeth of his also became shaky and started bleeding. Vinod Kumar also attacked Saleem and caused injuries on his right finger. When the companion of Dilshad tried to save them, Vinod Kumar and others ran from there and entered their Kothi and they started firing with guns. First, Raj Kumar and then others whose names have been given in the First Information Report, fired, turn by turn, at varies persons, named in the report.

The petitioners and Manmohan Jauhar alias Billa filed separate bail application. All the bail applications were dismissed of by the learned Additional Sessions Judge, Sangrur vide order dated 6.7.1983, except the anticipatory bail application of Manmohan Jauhar alias Billa who was granted anticipatory bail.

While rejecting the various bail applications, the learned Additional Sessions Judge, Sangrur relied upon Section 11 of Punjab Ordinance No. 3 of 1982. The Code of Criminal Procedure (Punjab Amendment) Ordinance, 1983. That sections reads :

"11. After section 439 of the Code, the following section shall be inserted, namely :

(a) who, being accused or suspected or committing an offence under any of the following sections, namely, sections 12B, 121, 121A, 122, 123, 124A, 153A, 302, 304, 307, 326, 333, 363, 364, 365, 367, 368, 392, 394, 395, 396, 399, 412, 431, 436, 449, and 450 of the Indian Penal Code, 1860, Sections 3, 4, 5 and 6 of the Explosive Substances Act, 1908 and sections 25, 26, 27, 29, 29, 30 and 31 of the Arms Act, 1959, is arrested or appears of is brought before a Court;

(b) who, having any reason to believe that he may be arrested on accusation of committing an offence as specified in clause (a), has applied to the High Court or the Court Sessions for a direction for his release on bail in the event of his arrest.

shall be released on bail or as the case may be, directed to be released on bail, except on one or more of the following grounds, namely :

(i) that the Court including the High Court or the Court of Sessions for reasons to be recorded in writing is satisfied that there are reasonable grounds for believing that such persons is not guilty of any offence specified in clause (a) :

(ii) that such person is under the age of sixteen years or a woman or a sick on an infirm person;

(iii) that the Court including the High Court or the Court of Sessions, for reasons to be recorded in writing is satisfied that there are exceptional and sufficient grounds to release or directe the release of the accused on bail."

The learned Additional Sessions Judge held that the case of the petitioners did not fall under any of the above exceptions and therefore, they were not entitled to bail.

The learned counsel for the petitioners argued that the Punjab Ordinance No. 3 of 1983 came into force on the 27th June, 1983 when it was published in the Punjab Government Gaz. (Extra.), and it is not retrospective in nature and therefore, the present occurrence which took place long before the coming into force of the said Ordinance, is not covered by it. I am of the opinion that this argument has no force. In what circumstances an accused can be granted bail is a matter of procedural law. Therefore, the law prevalent at the time the application for bail is to be considered, has to be seen irrespective of the fact when the occurrence took place.

The present petition is on behalf of those persons who have been named as accused or who have been found as such during the investigation of the First Information Report No. 80. The learned counsel for the petitioners advanced lengthy arguments to show that in the present case, the First Information Report No. 79 from the side of the petitioners was lodged much before the counterversion came into existence. He also argued that the first incident is said to have taken place near Delhi Gate, situated in Malerkotla, while the second incident took place near the house of Sant Ram petitioner and the distance between these two places is admittedly more than 100 yards. It was further argued that even if it is held that the complainantparty fired at any member of the mob, who had surrounded that house, it was done in the exercise of the right of selfdefence. It was also argued that the counterversion given in FIR No. 80 was unbelievable, because during the night it was not possible to see as to which of the petitioners fired from inside the house of Sant Ram. According to him, the counterversion is a concocted one, because each of the petitioners has been attributed one shot and each time one different member of the mob is stated to have been injured. He further argued that the injuries found on the persons injured by gunshots, are simple in nature. I am afraid, at this stage, such niceties cannot be gone into.

In Niranjan Singh and another v. Prabhakar Rajaram Kharote and others, AIR 1980 SC 785 it was remarked :

"Detailed examination of the evidence and elaborate documentation of the merits should be avoided while passing orders on bail applications. No party should have the impression that his case has been prejudiced. To be satisfied about a prima facie case is needed but it is not the same as an exhaustive exploration of the merits in the order itself."

Prima facie there is evidence to show that the persons mentioned in the First Information Report No. 80 and received gunshot injuries at the hands of the petitioners. It will be decided during trial as to what was the genesis of the occurrence and whether the shots were fires in selfdefence, or whether there was any intention to murder any person. It will also be decided at that time as to which of the petitioners actually took part in the occurrence.

In view of the newly added section 439A, Exception (i) (added by Punjab Ordinance No. 3 of 1983 to the Code of Criminal Procedure, 1973), a person can be released on bail only if there are reasonable grounds for believing that such person is not guilty of any of the offences specified in clause (a) of this section. At present there is no material to show that the petitioners are not guilty of the offence falling under section 307 of the Indian Penal Code. As noticed above, according to the version given in the First Information Report No. 80 and the evidence collected during the investigation, firearms were used by the petitioners.

For the foregoing reasons, I dismiss the present petition for bail.