Zulfiqar Ali vs State of Punjab

B.S. Yadav, J.

The present petitioners have been arrested in a case under sections 307/427/326/452/436/506/148/506/148/149 of the Indian Penal Code, registered at Police Station Malerkotla vide First Information Report No. 79 dated 17.6.1983.

The brief facts, according to the said First Information Report No. 79 dated 17.6.1983, which was recorded on the statement of Raj Kumar son of Sant Ram are to the effect that on the that day at about 9.20 p.m., he 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 Bhaina, Dilshad and their associates Latif and his brother, Bashir alias Tunda and Yasin had 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 persons with a mob surrounded the house and entered into it and caused them injuries. Then, that mob, some of whom had guns with them, fired 35 or 40 shots in the air. They also threw brickbats. Thereafter, these persons threw burning tyres, soked with kerosene oil, in the compound of the house.

(Note : In the present petition, in the translation of FIR No. 79 dated 17.6.1983, some facts are missing. Those facts have been taken from the original FIR which was read out by the learned State counsel).

On the next day, on the basis of the statement of Dilshad petitioner, a countercase was registered at 11.20 a.m. vide FIR No. 80. According to that version, on 17.6.1983 at 9.15 p.m., Vinod Kumar, Raj Kumar and Mannu, Charni Pahlwan, Raj Kumar son of Chanan Ram, Billa Gobarewala, Amrit Lal Gupta and Swaran Kumar were standing near Jindia Medical Store, outside Dehi 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. 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 companions of Dilshad tried to save them, Vinod Kumar and others ran from there and, entered their house and started firing with guns from the house. First, Raj Kumar and then others, whose names have been given in the First Information Report, fired, turn and turn, injuring various persons, named in the report.

The petitioners filed separate bail applications. All the bail applications were dismissed by the learned Additional Sessions Judge, Sangrur vide order dated 6.7.1983.

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

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

(a) who being accused or suspected of committing an offence under any of the following sections, namely, sections 120 B, 121, 121 A, 122, 123, 124A, 153 A, 302, 304, 307, 326, 333, 363, 364, 365, 367, 368, 392, 394, 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, 27,28, 29, 30 and 31 of the Arms Act, 1959, is arrested or appears or 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 of 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 merely :

(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 person is not guilty of any offence specified in clause in (a);

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

(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 direct the release of the accused on bail."

The learned Additional Sessions Judge held that the case of petitioner 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 Punjab Ordinance of 1983, came into force on the 27th June, 1983 when it was published in the Gazette 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 learned counsel for the petitioners argued that from the counterversions given in the First Information Report No. 80 it is clear that the attack was opened by the complainant party of First Information Report No;. 79 and that when the present petitioners pursued their attackers, who took shelter in the house of Raj Kumar son of Sant Ram, they were fired at by the inmates of that house. At this stage, it is very difficult to find out as to what was the genesis of the occurrence. For the purpose of bail application, we have to take the allegations contained in the FIR and the evidence collected during investigation. The allegations contained in the FIR and the evidence collected during the investigation, clearly show that the present petitioner had entered the house of Raj Kumar and had caused injuries to him and Vinod Kumar and Verinder Kumar. Vinod Kumar received 9 injuries, while Verinder Kumar, 7 and Raj Kumar, 8. One grievous injury each was found on the persons of Vinod Kumar and Verinder Kumar and these injuries have been attributed to Dilshad to have been caused by a Gandasa. Therefore, prima facie offence falling under section 326, is made out against Dilshad and against the others under Section 326 read with section 149 of the Indian Penal Code.

From the allegations and the evidence collected during the investigation, it is also clear that the petitioner are guilty of the offence falling under section 436 of the Indian Penal Code, as they are said to have thrown burning tyres, soaked in kerosene oil, at the house of Raj Kumar.

The learned counsel for the petitioners argued that the names of all the petitioners do not find mention in the FIR. This is immaterial. During the investigation, the names of all the petitioners find mention as the perpetrators of the above crimes. Exception (i) of section 439A, added to the Code of Criminal Procedure, 1973 (by Punjab Ordinance No. 3 of 1983) lays down that a person can be released on bail only if there are reasonable grounds for believing that the said person is not guilty of any of the offences specified in clause (a). Section 326 and 436 of the Indian Penal Code find mention in clause (a) of section 439A. As there are no reasonable grounds for holding that any of the petitioners is not guilty of the above offences, the present petition for bail fails and the same is hereby dismissed.