Vikas vs State of U.T., Chandigarh

Prayer in this petition is for grant of regular bail to the petitioner in case FIR No. 339 dated 17.11.2017, registered under Sections 147, 148, 332, 353,

302, 506 of the IPC at Police Station Sector 11, Chandigarh, wherein challan has been presented under Sections 147, 148, 332, 353, 304, 506 of the

IPC.

Learned counsel for the petitioner submits that as per the allegations in the FIR, the petitioner has given slap and fist blow to the complainant. It is

further submitted that except the petitioner, all the other co-accused have already been granted concession of regular bail and relies upon the order

dated 04.07.2018 passed in CRM-M-20602-2018, which is reproduced below:

Counsel for the petitioner has submitted that the petitioner is in judicial lock up since 18.11.2017 and the investigation is complete and he is no more

required for any further investigation. It is further submitted that there is no direct allegation against the petitioner except that when the main accused

Atul had caused fatal injuries to deceased Harvinder Singh, the petitioner and some other kinners had come at the spot and had also caused the

injuries. It is further submitted that the main accused Atul has already been granted the concession of regular bail after considering the opinion given

by the Board of Doctors regarding the cause of death. The operative part of the order dated 25.04.2018 passed in CRM-M No.16105 of 2018 is

reproduced as under:-“Counsel representing the petitioner adverts to the opinion recorded by a Board of Doctors as regards cause of death and

which was in the following terms:

“The cause of death in our opinion chronic ischemic heart disease with pulmonary edema which is natural cause of death.â€​

Counsel has even referred to the document placed on record at Annexure P-3 i.e. a communication from the Investigating Officer, Police Station

Sector-11, Chandigarh and addressed to the Board of Doctors, Government Hospital, Sector-16, Chandigarh, wherein a second/final opinion on the

cause of death was sought. In response thereto, the following opinion was furnished:

“In the absence of any external injury on the body of deceased opinion regarding exaggeration of preexisting cardiac disease (chronic ischemic

heart disease with pulmonary edema) due to fist blow/kicked to the deceased cannot be given. However, the above possibility of exaggeration of the

preexisting cardiac disease due to altercation/heated arguments/trembling can not be ruled out. Sd/- Sd/- 2.2.18 2.2.18â€​

Apparently, it is on account of such opinion having been recorded that challan was presented by the Investigating Agency not for offence under

Section 302 IPC but under Section 304 IPC. During the course of arguments, learned counsel representing U.T. Chandigarh would concede that there

were no external injury marks on the person of the deceased. Counsel for the petitioner has even made an attempt to create a dent in the prosecution

version by submitting that even though complainant/S.D.O. Arvind Yadav had alleged that he had been given repeated fist and slap blows with an

intention to kill, yet his medical examination had not even been conducted. Even such assertion made by counsel has not met with any rebuttal. Challan

in the present case has been presented. Trial is at the very initial stage and would take time to conclude. In view of the facts and circumstances

noticed herein above and coupled with the length of incarceration already suffered by the petitioner, he is held entitled to the benefit of bail. Petitioner

be enlarged on bail subject to satisfaction of trial Court/Duty Magistrate, concerned. Disposed of.â€​

Learned counsel for the petitioner has further submitted that one more person i.e. Malayika Mahant @ Kineer Malaika has also been granted the

concession of anticipatory bail vide order dated 04.05.2018 passed in CRM-M No.17667 of 2018. Learned counsel for the petitioner has further

submitted that even Kinnar Sonam Mahant has also been granted the concession of interim anticipatory bail vide order dated 14.06.2018 passed in

CRM-M No.25962 of 2018.

Learned counsel for the petitioner has further submitted that the petitioner is in judicial custody since 17.11.2017 and the trial is likely to take a long

time.

Learned State counsel filed custody certificate which is taken on record. Learned State counsel submits that the petitioner is in judicial custody for last

about 10 months and investigation is complete and challan has been presented.

I have heard learned counsel for the parties.

Without commenting upon the merits of the case, considering the facts that all the co-accused have already been granted concession of regular bail as

noticed above; petitioner is in judicial custody since 17.11.2017 and the trial is likely to take some time, the instant petition is allowed. The petitioner is

ordered to be released on regular bail on his furnishing bail/surety bonds to the satisfaction of the trial Court/Duty Magistrate concerned.

However, it will be open for the prosecution to apply for cancellation of bail, if the petitioner is found involved misusing the concession of bail, in any

manner