Punjab-Haryana High Court
Gurmail @ Teli vs State Of Haryana on 7 July, 2023
Neutral Citation No:=2023:PHHC:085759
CRM-M-29866-2023 [1] 2023:PHHC:085759
216
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-29866-2023
Date of decision: 07.07.2023
Gurmail @ Teli ...Petitioner
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE VIKAS BAHL
Present: Mr. D.S. Virk, Advocate for the petitioner.
Mr. Amandeep Joshi, DAG, Haryana.
****
VIKAS BAHL, J. (ORAL)
1. This is the third petition filed under Section 439 of Cr.P.C. for
grant of regular bail to the petitioner in FIR No.244 dated 31.05.2019
registered under Sections 148, 341, 302, 120-B of the Indian Penal Code,
1860 read with Section 149 of IPC and Section 25 of the Arms Act, 1959 at
Police Station City Kaithal, District Kaithal.
2. Learned counsel for the petitioner has submitted that the
petitioner is in custody since 02.06.2019 (more than 4 years and 1 month)
and investigation is complete and challan has been presented and there are 35
prosecution witnesses, out of which, only 14 witnesses have been examined
and thus, the conclusion of trial is likely to take time. It is further submitted
that the first bail application filed by the petitioner was dismissed as
withdrawn at that stage on 17.08.2021 and the second bail application filed
by the petitioner was dismissed as withdrawn at that stage on 27.07.2022 and
in the order dated 27.07.2022, the trial Court was directed to expedite the
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trial proceedings but the trial still has not been concluded and several
witnesses are yet to be examined. Reference has been made to various zimni
orders, more so, zimni order dated 10.03.2023 in order to show that on the
said date, no PW was present and bailable warrants in the sum of Rs.10,000/-
were issued to summon the witnesses i.e., PWs-Sandeep and Rohit.
Reference has also been made to the last zimni order dated 20.05.2023, on
which date, the case was adjourned to 10.08.2023 as the Presiding Officer of
the Court was on casual leave. It is contended that the petitioner was not
named in the FIR as the FIR has been registered against unknown persons
and the complainant is not the eye-witness in the present case and the eye-
witness in the present case, as per the case of the prosecution, is Gurdev who
has already been examined as PW5.
3. Learned counsel for the petitioner has submitted that as per
evidence of PW5-Gurdev, no specific injury has been attributed to any
person much less the present petitioner. It is further submitted that the said
PW5 has stated that he had identified Ashok Kumar (accused) who was his
brother-in-law and the name of the present petitioner was disclosed to him by
the police. Reference has been made to the cross-examination of the said
PW5 in order to highlight the fact that none of the accused persons except
Ashok was known to him by face or by name prior to the incident. It is
contended that as per the affidavit of the Doctor, the deceased had suffered 6
injuries, out of which, 5 injuries were incised wound whereas recovery from
the present petitioner is of wooden stick (binda). It is argued that even as per
the case of the prosecution, enmity was primarily between the deceased and
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Ashok(brother of the deceased). It is prayed that apart from other facts,
keeping in view the custody of the petitioner and the stage of the trial, the
petitioner deserves the concession of regular bail. It is also submitted that co-
accused of the petitioner namely Ankit and Raj Kumar @ Raju have been
granted the concession of regular bail by a Coordinate Bench of this Court
vide orders dated 05.05.2022 and 01.08.2022 passed in CRM-M-17882-2022
and CRM-M-21430-2022 (Annexure P-3 and P-4 respectively).
4. Learned State Counsel, on the other hand, has opposed the
present petition for grant of regular bail to the petitioner and has submitted
that the petitioner along with other co-accused Ashok (brother of the
deceased) had a dispute with the deceased and the present petitioner was
friend of said Ashok and the petitioner and Ashok along with other accused
persons inflicted multiple injuries upon the deceased, on account of which,
he died and thus, committed a heinous offence and does not deserve the
concession of regular bail. It is further submitted that there is one more case
under the Prisons Act registered in the year 2022, against the petitioner while
he was in custody.
5. Learned counsel for the petitioner, in rebuttal, has submitted that
prior to the registration of the FIR, the petitioner was not involved in any
other criminal case 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
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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."
6. This Court has heard learned counsel for the parties and has
perused the paper book.
7. In the present case, the petitioner is in custody since 02.06.2019
(more than 4 years and 1 month) and investigation is complete and challan
has been presented and out of 35 prosecution witnesses, only 14 witnesses
have been examined and thus, the conclusion of trial is likely to take time.
The previous bail application filed by the petitioner was dismissed as
withdrawn at that stage, vide order dated 27.07.2022, on which date, the trial
Court was directed to expedite the trial proceedings. Even after passing of the
said order, several witnesses are yet to be examined. On 20.05.2023, the case
was adjourned to 10.08.2023 as the Presiding Officer was on casual leave.
On 10.03.2023, no PW was present, as a result of which, bailable warrants
were issued against PWs-Sandeep and Rohit, who had not appeared despite
service. Even on 31.03.2023, although, PW-Manish Kumar was examined
but PWs-Sandeep, Deepak and Rohit had not appeared despite service of
bailable warrants and further bailable warrants were issued. It is apparent that
the trial would not be concluded in the near future. The petitioner was not
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named in the FIR as the same was registered against unknown persons. The
complainant, in the present case, is not the eye-witness and it is Gurdev son
of Sh. Rattan Singh, a relative of deceased Sunil and Ashok Kumar (co-
accused), who is the eye-witness in the present case. Relevant portion of his
evidence in chief is reproduced hereinbelow:-
"Deposition sheet of a witness examined on oath:
The information and deposition of Gurdev
son of Shri Rattan Singh, resident of Badsikri
Kalan, Kaithal, aged about 31 years
Qualification B.com
Witness no. 5 on Oath
For the prosecution Taken before me (Purushottam Kumar)
Addl. Sessions Judge, Kaithal
Dated: 4.1.2022
Stated that I am labourer by profession. I am married with
Pinki daughter of Ram Kumar, resident of village Narar. On
31.5.2019, I reached in city Kaithal where my brother-in-law
namely Sunil Kumar met me at Bhagat singh chowk and he
asked me regarding my visit there and I told him that I came at
city for purchasing household articles and further he told me
that he is going to near Gyara Rudri Mandir for purchasing
some household articles and he also said to me for accompanied
him and I said to him I will come there after sometime. Time
was approximately 12 noon. Thereafter, I was going towards
Gyara Rudri Mandir and I heard some noise and I was at the
distance of about 2 or 3 shops away from Gyara Rudri Mandir.
My brother-in-law Ashok Kumar alias Shoki was present there
along with 5-6 other persons having two motorcycles who were
having bindas and one of them was having sua (iron rod which
issued to break the ice bricks). One accused gave sua blow on
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the backside of Sunil (now deceased) and other accused gave
many binda blows upon Sunil. On seeing the incident, I ran
away from the spot ad hiding myself by running towards the
Bhagat singh chowk and save myself from the accused and
thereafter it has came in my knowledge that due to the serious
injuries caused by the accused Ashok etc., my brother-in-law
expired and I reached in civil hospital, Kaithal where police
recorded my statement.
On 4.6 2019, 1 joined the investigation of this case with
police and identify the accused Ashok Kumar alias Shoki etc.
who is my real brother-in-law and Gurmail whose name was
disclosed by the police., vide memos Ex P10 to Ex.P12,........
xxx xxx
xxx xxx
xxx xxx"
Relevant portion of cross-examination of said Gurdev is
reproduced hereinbelow:-
"xxx xxx
xxx xxx
I went to Gyara Rudri mandir by feet from Bhagat singh chowk.
None of the accused except Ashok was known to me by name or
face prior to the incident. The accused were also not interfaced
to me prior to incident.
Xxx xxx
xxx xxx"
8. A perusal of the same would show that no specific attribution
with respect to any injury has been given to the petitioner and it has been
stated that name of the petitioner was disclosed by the police. In the cross-
examination, it has been stated that none of the accused except Ashok was
known to him by name or by face prior to the incident. Co-accused of the
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petitioner namely Ankit and Raj Kumar @ Raju have been granted the
concession of regular bail by the Coordinate Bench of this Court vide orders
dated 05.05.2022 and 01.08.2022 passed in CRM-M-17882-2022 and CRM-
M-21430-2022 (Annexure P-3 and P-4 respectively). The custody of the
petitioner is much longer than the custody of said co-accused Ankit and Raj
Kumar @ Raju.
9. Keeping in view the abovesaid facts and circumstances, more
so, the period of custody of the petitioner as well as the stage of trial and also
in view of the law laid down by the Supreme Court in Maulana Mohd. Amir
Rashadi'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 being
required in any other case.
10. 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.
11. 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 application.
07.07.2023 (VIKAS BAHL)
Pawan JUDGE
Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
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