Punjab-Haryana High Court
Chandan vs State Of Haryana on 31 August, 2022
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
234
CRM-M-32398-2022 (O&M)
Date of decision: 31.08.2022
CHANDAN
....Petitioner(s)
Versus
STATE OF HARYANA
...Respondent(s)
CORAM: HON'BLE MR. JUSTICE VIKAS BAHL
*****
Present : Mr. Kunal Dawar, Advocate
for the petitioner.
Mr. Munish Sharma, AAG Haryana.
Mr. Kamal Chaudhary, Advocate
for the complainant.
*****
VIKAS BAHL. J. (ORAL)
This is the first petition filed under Section 439 CrPC for grant of
regular bail to the petitioner in case FIR No.434 dated 10.11.2021 registered
under Sections 148, 149, 302 and 307 of the Indian Penal Code, 1860 (Section
120-B of the IPC added later on) and Section 25/54/59 of the Arms Act, 1959 at
Police Station Kotwali, Faridabad, Haryana.
Learned counsel for the petitioner submits that the petitioner is in
custody since 17.11.2021. Investigation in the case is complete and challan has
been presented against 8 accused persons. It is submitted that there are 42
prosecution witnesses, out of which only 03 witnesses have been examined and
thus the trial is likely to take time.
Learned counsel for the petitioner has submitted that in the present
case, as per the FIR, Mustak (deceased) and Mubarik (injured) were having
biryani in the shop of Manish and one Arun was also present at the spot. As per
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the prosecution case, all the said persons i.e. Mubarik (PW-1), Arun (PW-2) and
Manish (PW-3) have been examined and they have not supported the case of the
prosecution and have been declared hostile and have rather submitted that the
accused persons including the present petitioner, are not the persons who had
hatched the criminal conspiracy. It is further submitted that the complainant in the
present case was not the eye-witness and had learnt from Mubarik (injured) and
Arun that two persons had come on the bike and had shot the brother of the
complainant Mustak and had also injured Mubarik. It is submitted that as per
prosecution case, two persons who had fired at the deceased Mustak and Mubarik
were Vinod Bidhuri and Arun @ Anna. It is submitted that the said two persons
were being followed by a Scorpio and Creta car in which several other accused
persons, including the present petitioner, were also stated to be travelling, but even
in the FIR no overt act has been attributed to the petitioner with respect to the
alleged incident dated 10.11.2021. Reference is made to the disclosure statement
of Vinod Bidhuri, who as per the prosecution version is the main accused in the
present case and even as per the said statement, the petitioner was not the present
along with the main accused on 10.11.2021 i.e. on the date of the alleged
occurrence, as on the said date only 04 persons i.e. Yogesh, Arun @ Ana, Rajesh
and Vinod Bidhuri had gone and had committed the alleged offence as per the said
statement. It is submitted that the best case against the petitioner, even as per the
said disclosure statement and the disclosure statement of the petitioner is that some
days prior to the alleged incident, the petitioner, along with a large number of
other persons, had conspired to kill the deceased. It is submitted that no recovery
has been effected from the present petitioner.
Learned State counsel as well as the counsel for the complainant has
opposed the present petition for regular bail and submitted that the petitioner is
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involved in 02 other cases. The counsel for the complainant has further stated that
brother of the petitioner has even threatened the complainant to not to pursue the
present case.
Learned counsel for the petitioner in rebuttal has submitted that the
petitioner is on bail in both the said cases and has relied upon the judgment of
Hon'ble Supreme Court in "Maulana Mohd. Amir Rashadi vs. State of U.P. and
another", reported as 2012 (2) SCC 382 to contend that the facts and
circumstances of the present case are to be seen and the bail application of the
petitioner cannot be rejected solely on the ground that the petitioner is involved in
another case. The relevant portion of the said judgment is reproduced
hereinbelow:-
"As observed by the High Court, merely on the basis of
criminal antecedents, the claim of the second respondent
cannot be rejected. In other words, it is the duty of the Court to
find out the role of the accused in the case in which he has been
charged and other circumstances such as possibility of fleeing
away from the jurisdiction of the Court etc."
It is further submitted by the learned counsel for the petitioner that the
argument with respect to the brother of the petitioner having threatened the
complainant has only been made in order to oppose the present petition for regular
bail inasmuch as the complainant is not even an eye-witness in the present case
and the eye-witnesses including the injured have deposed in favour of the present
petitioner and thus, there was no occasion for the brother of the complainant to
threaten the complainant.
This Court has heard learned counsel for the parties and perused the
material on record.
The petitioner is in custody since 17.11.2021. Investigation in the
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case is complete and there are 42 prosecution witnesses, out of which only 3
witnesses have been examined so far and thus the trial is likely to take time. As per
the prosecution case, it is Arun @ Anna and Vinod Bidhuri who had gone on the
motorcycle on 10.11.2021 and had fired from their respective pistols at Mubarik
and Mustak, as a result of which Mustak had died and Mubarik had suffered
gunshot injuries. The best case of the prosecution against the present petitioner is
that he had threatened the deceased, along with other persons, few days prior to
the date of the alleged occurrence dated 10.11.2021. As per disclosure statement
of Vinod Bidhuri, four persons who were present at the spot on the date of the
alleged incident i.e. on 10.11.2022 were Yogesh, Arun @ Ana, Rajesh and Vinod
Bidhuri and he has not named the present petitioner as one of the persons who was
present at the time of the alleged incident. The petitioner was not even named in
the disclosure statement of Arun @ Anna. Mubarik, who is the injured eye-witness
has been examined as PW-1 and he has not supported the case of the prosecution
and has rather submitted that the accused persons, including the present petitioner,
were not the persons who had hatched the criminal conspiracy and caused injuries.
Arun, who is the other eye-witness has been examined PW-2 and even he has not
supported the case of the prosecution and has been declared hostile. Manish has
been examined as PW-3 and he is the owner of the Biryani stall where the
deceased and the injured were sitting and even he has not supported the case of the
prosecution. The complainant in the present case is not an eye-witness. No
recovery has been effected from the petitioner.
Keeping in view the abovesaid facts and circumstances and the law
laid down in Maulana's case (supra) the present petition is allowed and 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, subject to him not
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being required in any other case.
However, it is made clear that in case, any act is done by the
petitioner to threaten the complainant or any of the witnesses, then it would be
open to the State to move an application for cancellation of bail granted to the
petitioner.
Nothing stated above shall be construed as an expression of opinion
on the merits of the case and the trial would proceed independently of the
observations made in the present case which are only for the purpose of
adjudicating the present bail petition.
Pending applications, if any, shall also stand disposed of.
(VIKAS BAHL)
JUDGE
August 31, 2022
S.Sharma(syr)
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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