Rakesh Kumar Alias Raka vs State Of Punjab
2023 Latest Caselaw 4217 P&H

                        CRM-M-8414-2023                  -1-                2023:PHHC:053904


                          IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

                        210
                                                               CRM-M-8414-2023

                                                               Date of Decision: 17.04.2023


                        Rakesh Kumar @ Raka

                                                                                   .... Petitioner


                                                  Versus

                        State of Punjab
                                                                                   .... Respondent


                        CORAM: HON'BLE MR. JUSTICE ASHOK KUMAR VERMA


                        Present: -    Mr. Pratap Singh Gill, Advocate for the petitioner.

                                      Mr. Jaspal Singh Guru, AAG, Punjab.

                                      Mr. Piyush Sharma, Advocate for the complainant.

                        ASHOK KUMAR VERMA, J. (ORAL)

1. The petitioner has filed the present petition under Section 438

of the Code of Criminal Procedure, 1973 for grant of regular bail in case

FIR No. 91 dated 02.09.2022 registered under Section 302 IPC (later on

Section 302 IPC was substituted to Section 304 IPC) registered at Police

Station Bahawala, District Fazilka.

2. Briefly, the aforesaid FIR was registered on the statement of

complainant-Raju S/o Jarnail Singh alleging therein that he is a labourer

by profession. They are five brothers and sisters, namely; Bhajan Singh,

Maya W/o Manjit Singh, then complainant himself; Soma W/o Bhajan

Singh and the youngest brother is Sandeep Singh. On 28.08.2022, his

RISHU KATARIA 2023.04.19 14:01 I attest to the accuracy and authenticity of this order/judgment CRM-M-8414-2023 -2- 2023:PHHC:053904

sister Soma visited village Rajanwali to meet them. Last night, the

complainant, his wife-Gagandeep Kaur, sister-Soma and mother-

Jaswinder Kaur, went to sleep in the courtyard after eating food. His

father-Jarnail Singh aged about 60 years went to sleep on the roof.

Around 12:00 O'clock at night, he heard noises of his father "mar-ditta

mar-ditta" from the house of petitioner-Rakesh Kumar @ Raka who is

their neighbourer whereupon, he along with his wife and sister-Soma,

climbed the upstairs and noticed in the light of bulb that the petitioner was

beating his father brutally with a dang. The petitioner with an intention to

kill his father, gave dang blows on both the legs, below the knees and

back of this father. They hurriedly reached the spot and released his

father from the clutches of accused. On seeing them, the petitioner ran

away from the spot along with his dang. In the meanwhile, younger

brother of complainant, namely, Sandeep Singh, who had gone to water

the fields also reached at the spot and both the them took care of their

father and noticed that both the legs of his father were broken below

knees. Blood was oozing out from the injuries. Injury marks were also

present on his back and his right wrist had also broken. They brought

their father in their house and by arranging conveyance, they were taking

their father to Civil Hospital, Abohar, but he succumbed to the injuries on

the way. The motive behind the occurrence was that Rakesh Kumar used

to raise objection regarding sleeping of his father on the roof as he was

suspecting that his father was peeping in their house.

3. Learned counsel for the petitioner, inter alia, contends that

the petitioner is innocent and has falsely been implicated in the present

RISHU KATARIA 2023.04.19 14:01 I attest to the accuracy and authenticity of this order/judgment CRM-M-8414-2023 -3- 2023:PHHC:053904

case. He further contends that in fact the deceased fell down in the house

of petitioner and two rapats bearing G.D. Nos. 4 and 5 dated 02.09.2022

(Annexure P-4) have also been entered by the police in this regard. He

further contends that the deceased was handed over to the police by the

petitioner when he was alive, but later on the facts of the FIR have been

twisted by the police at the instance of complainant. No post-mortem

toxicology test was conducted for checking the level of alcohol in the

body of the deceased. Learned counsel further contends that wife of the

petitioner had moved an application to the police authorities for inquiry

and after thorough inquiry, offence under Section 302 IPC was deleted

and offence under Section 304 IPC was added vide G.D. No. 032 dated

01.02.2023 (Annexure P-3). Nothing has to be recovered from the

petitioner, so his custodial interrogation is not required. Petitioner is

ready and willing to join the investigation as and when called by the

police. Thus, it is prayed that the petitioner may be granted the

concession of pre-arrest/anticipatory bail.

4. On the other hand, learned counsel for the State assisted by

learned counsel for the complainant vehemently opposed the submissions

learned counsel for the petitioner. They contend that there are specific

allegations against the petitioner that on 01.09.2022, when the deceased

was sleeping on the roof of his house, the petitioner took him in his house

and caused grievous injuries with dang. The entire occurrence was

witnessed by the complainant, his wife-Gagandeep Kaur, sister-Soma.

Custodial interrogation of the petitioner is very much essential as the

weapon of offence i.e. dang is yet to be recovered. Thus, it is submitted

RISHU KATARIA 2023.04.19 14:01 I attest to the accuracy and authenticity of this order/judgment CRM-M-8414-2023 -4- 2023:PHHC:053904

that keeping in view the grave nature of offence alleged against the

petitioner, he does not deserve the benefit of bail and prayed for dismissal

of present petition.

5. I have heard learned counsel for the parties and carefully

gone through the material available on record.

6. Initially, the FIR in question was registered under Section

302 IPC against the petitioner on the statement of complainant to the

effect that the petitioner had killed his father at 12:00 midnight of

28.08.2022, while the deceased was sleeping on the roof. According to

post-mortem report of the deceased, fractures were found on the left lower

leg, knee joint, right knee, right forearm and two lacerated wounds were

also present on the back and lower left leg of deceased. Cause of death

was due to massive blood loss owing to spleen rupture and multiple

fractures leading to hemorrhagic shock. However, during investigation

offence under Section 302 IPC was deleted and offence under Section 304

IPC was added vide DDR No. 32 dated 01.02.2023 (Annexure P-2).

7. It is settled proposition of law that power exercisable under

Section 438 of the Cr.P.C. is somewhat extraordinary in character and it is

to be exercised in exceptional cases. The Hon'ble Supreme Court in State

Vs. Anil Sharma : (1997) 7 SCC 187 held as under:-

"6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation- oriented than questioning a suspect who is well ensconded with a favorable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual.

RISHU KATARIA 2023.04.19 14:01 I attest to the accuracy and authenticity of this order/judgment CRM-M-8414-2023 -5- 2023:PHHC:053904

The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders."

8. Further, it is well settled that Article 21 of the Constitution is

not an absolute right and is subject to the procedure established by law.

The facts and circumstances involved in the present case, point towards

the complicity of the petitioner and thus custodial interrogation of the

petitioner is necessary and would not amount to the violation of

petitioner's right under Article 21 of the Constitution.

9. Keeping in view the above facts as well as nature of the

offence, the petitioner does not deserve the concession of anticipatory

bail. Hence, the present petition is hereby dismissed.

                        17.04.2023                                   (ASHOK KUMAR VERMA)
                        rishu                                               JUDGE


                                      Whether speaking/reasoned               Yes/No

                                      Whether Reportable                      Yes/No




RISHU KATARIA
2023.04.19 14:01
I attest to the accuracy and
authenticity of this order/judgment