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$-4 & 5 HIGH COURT OF DELHI (i) BAIL APPLN. 1483/2013
BAVINDERMALHOTRA Petitioner
Through: Mr. K. K. Manan, Mr. Nipun Bhardwaj and Mr. Ankush Narang, Advocates
BAVINDERMALHOTRA Petitioner
Through: Mr. K. K. Manan, Mr. Nipun Bhardwaj and Mr. Ankush Narang, Advocates
VERSUS
STATE Respondent
Through: Mr.Mukesh Gupta, Additional Public Prosecutor for Respondent-
State with Inspector/SHO Brijinder Singh and SI Suresh Sharma, P.S.
Kalkaji (ii) BAILAFPLN. 1981/2013 AMARNATH Petitioner
Through: Mr. K. K. Manan, Mr. Nipun Bhardwaj and Mr. Ankush Narang, Advocates
Through: Mr.Mukesh Gupta, Additional Public Prosecutor for Respondent-
State with Inspector/SHO Brijinder Singh and SI Suresh Sharma, P.S.
Kalkaji (ii) BAILAFPLN. 1981/2013 AMARNATH Petitioner
Through: Mr. K. K. Manan, Mr. Nipun Bhardwaj and Mr. Ankush Narang, Advocates
VERSUS
STATE Respondent
Through: Mr.Mukesh Gupta, Additional Public Prosecutor for Respondent-
State with Inspector/SHO Brijinder Singh and SI Suresh Sharma, P.S.
Kalkaji
Through: Mr.Mukesh Gupta, Additional Public Prosecutor for Respondent-
State with Inspector/SHO Brijinder Singh and SI Suresh Sharma, P.S.
Kalkaji
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
13.12.2013 Petitioners, in the above-captioned two applications, seek bail in
BAILAPPLNs. 1483 & 1981 of2013 Page 1 2013:DHC:8178
FIR No.259/2012 under Sections 302/323 of IPC registered at P.S. i
Kalkaji, New Delhi on common grounds and so, both these applications were heard together and are being disposed ofbythis common order.
The prosecution version of this FIR case as noticed by concerned
Additional Sessions Judge while declining bail to pQXiiiovLQV-Balvinder
Malhotra is as under: - "The FIR was registered on the complaint of the brother of deceased Sh. Rajender Singh Negi to the effect that on 03.09.2012 his brother/deceased Sh. Gopal Singh
Negi hadparkedhis motorcycle infront ofhis office. That at around 8.30 pm when he came out of his office to throw waste water and was standing beside his motorcycle, peon of adjoining shop 'Kalra Jewewllers' came and spitted
Gutka on his motorcycle due to which a quarrel started between his brother andthepeon. In the meantime, owner of the shop Kalra Jewellers came out and all ofthem started fighting with each other. The owner ofKalra Jewellers Sh.
Balvinder Malhotra also came and started hitting the complainant by means of dandas and due to which complainant and his friend received injuries. In the meantime, son of accused Balvinder Malhotra also came, snatched the gunfrom the security guard andfired a shot due towhich his brother Sh. Gopal Singh Negi haddied. The police had recorded the statement of other eye-witnesses under Section 164 Cr.P.C. and the role assigned to this accused was that he also exhorted the security guard to openfire whereupon the security guard hadfired a shot in the air and thereafter, his son hadfired a shot towards the deceased. On the basis ofstatement ofwitnesses the present applicant alongwith other accused were arrested. "
I
I
The counter version put forih by petitionQr-Balvinder Malhotra is
BAILAPPLNs. 1483 &1981 of2013 ^ Page 2 as under: -
"It is worthwhile to point here that the gun shot was fired by the security guard namely Shri Kishan Singh but not by the son of the present Petitioner which is also been corroborated from the circumstances and the scene of acutance came in the DVR which is tampered by the
Investigating agency itself because the incident was taken place on 03.09.2012 and the police reached the spot immediately and when empty cartridges and other material was seized at the spot by the investigating agency did not seize the DVR on 03.09.2012 itself And it is further important to be noted down that the investigating agency had seen the scene ofoccurrence in the DVR before seizing the
DVR in which it was crystal clear that the gun shots were fired by the guardbut not by the son ofthepresent Petitioner and the DVR and other material was taken to the police station where the same was manipulated and tampered and the particular scenes ofthe DVR in which the incident was recorded, deleted by the investigating agency in the connivance ofthe CFSL peoplejust to save the SHO and the investigating officer because the investigating office had already registered a case by showing Udit Malhotra allegedly fired the shots from the gun and has already arrested him on 05.09.2012 andjust tofill up the lacuna the
DVR was tampered and the scene which was in the DVR was deleted, deliberately."
At the hearing, it was vehemently urged by learned counsel for petitioners that a quarrel had taken place on a petty issue of throwing waste water and petitioner-5a/vzWer Malhotra's peon spitting Gutkha on motorcycle of complainant led to a quarrel and in a scuffle, complainant/first-informant of the FIR in question and eye-witness-
BAILAPPLNs. 1483 &1981 of2013 Page 3 Sanjay had sustained simple injuries at the hands of petitioner-^a/vm^/er
Malhotra and one of the guards.had fired, which had resulted in death of
Gopal Singh Negi and no role has! been attributed to petitioner-^mar
Nath, who was one ofthe guards and the FSL report regarding the Digital
Video Recorder installed in the CCTV Cameras at the spot does not incriminate petitioners.
Itwas submitted on behalfofpetitioners that both petitioners are in custody since September, 2012 and the investigation of this case is complete and trial ofthis case is likely to take time and so, petitioners deserve bail.
Learned Additional Public Prosecutor for respondent-State strongly opposes the grant ofbail to petitioner-accused persons by contending that petitioner-MvzWer Malhotra had exhorted his son to kill the deceased and even petitioner-^w^zr Nath had assaulted one of the witnesses. To assert so, attention of this Court was drawn to statement of some witnesses got recorded under Section 164 of Cr.P.C. but there is no mention ofthese witnesses in initial prosecution version put forth by first informant or the eye-witness. However, it is submitted by learned
Additional Public Prosecutor for respondent-State that it is not a fit case for bail.
Upon hearing and on perusal of the FIR of this case, the status report, the FSL report andthe material on record, I find that the contents ofthe FIR ofthis case is reproduced in Hindi language in the status report and on its bare perusal it becomes evident that ^QtiXionQr-Balvinder
Malhotra had scuffled and assaulted the first-informant of the FIR in question as well as eye-witness-iSawjaj; and no specific role has been
BAILAPPLNs. 1483 &1981 of2013 ^ Page 4 attributedto petitioner-^warTVa^/z. I
During the course ofhearing, attention ofthis Court was drawn by learned counsel for petitioners to statement of eye-witness-Sa«7a>' recorded under Section 161 of Cr.P.C. and even on its perusal, I do not find that the role ofpetitioner exhorting main accused to fire, is there nor any role has been ascribed to petitioner-^war Nath. Even the CCTV footage sent to FSL does not prima facie incriminate petitioners.
In view ofthe aforesaid, without commenting upon merits ofthis case, it is directed that petitioners-MvzWer Malhotra S/o late Sh
Gulshan Malhotra and Amarnath S/o Sh. Jai Dayal be released on bail subject to their furnishing bail-bond in the sum of ^ 30,000/- each with one local surety ofthe like amountto the satisfactionoftrial court.
Boththese applications stand disposed of (SUNIL GAUR)
JUDGE
DECEMBER 13, 2013 s BAILAPPLNs. 1483 &1981 of2013 Page 5
13.12.2013 Petitioners, in the above-captioned two applications, seek bail in
BAILAPPLNs. 1483 & 1981 of2013 Page 1 2013:DHC:8178
FIR No.259/2012 under Sections 302/323 of IPC registered at P.S. i
Kalkaji, New Delhi on common grounds and so, both these applications were heard together and are being disposed ofbythis common order.
The prosecution version of this FIR case as noticed by concerned
Additional Sessions Judge while declining bail to pQXiiiovLQV-Balvinder
Malhotra is as under: - "The FIR was registered on the complaint of the brother of deceased Sh. Rajender Singh Negi to the effect that on 03.09.2012 his brother/deceased Sh. Gopal Singh
Negi hadparkedhis motorcycle infront ofhis office. That at around 8.30 pm when he came out of his office to throw waste water and was standing beside his motorcycle, peon of adjoining shop 'Kalra Jewewllers' came and spitted
Gutka on his motorcycle due to which a quarrel started between his brother andthepeon. In the meantime, owner of the shop Kalra Jewellers came out and all ofthem started fighting with each other. The owner ofKalra Jewellers Sh.
Balvinder Malhotra also came and started hitting the complainant by means of dandas and due to which complainant and his friend received injuries. In the meantime, son of accused Balvinder Malhotra also came, snatched the gunfrom the security guard andfired a shot due towhich his brother Sh. Gopal Singh Negi haddied. The police had recorded the statement of other eye-witnesses under Section 164 Cr.P.C. and the role assigned to this accused was that he also exhorted the security guard to openfire whereupon the security guard hadfired a shot in the air and thereafter, his son hadfired a shot towards the deceased. On the basis ofstatement ofwitnesses the present applicant alongwith other accused were arrested. "
I
I
The counter version put forih by petitionQr-Balvinder Malhotra is
BAILAPPLNs. 1483 &1981 of2013 ^ Page 2 as under: -
"It is worthwhile to point here that the gun shot was fired by the security guard namely Shri Kishan Singh but not by the son of the present Petitioner which is also been corroborated from the circumstances and the scene of acutance came in the DVR which is tampered by the
Investigating agency itself because the incident was taken place on 03.09.2012 and the police reached the spot immediately and when empty cartridges and other material was seized at the spot by the investigating agency did not seize the DVR on 03.09.2012 itself And it is further important to be noted down that the investigating agency had seen the scene ofoccurrence in the DVR before seizing the
DVR in which it was crystal clear that the gun shots were fired by the guardbut not by the son ofthepresent Petitioner and the DVR and other material was taken to the police station where the same was manipulated and tampered and the particular scenes ofthe DVR in which the incident was recorded, deleted by the investigating agency in the connivance ofthe CFSL peoplejust to save the SHO and the investigating officer because the investigating office had already registered a case by showing Udit Malhotra allegedly fired the shots from the gun and has already arrested him on 05.09.2012 andjust tofill up the lacuna the
DVR was tampered and the scene which was in the DVR was deleted, deliberately."
At the hearing, it was vehemently urged by learned counsel for petitioners that a quarrel had taken place on a petty issue of throwing waste water and petitioner-5a/vzWer Malhotra's peon spitting Gutkha on motorcycle of complainant led to a quarrel and in a scuffle, complainant/first-informant of the FIR in question and eye-witness-
BAILAPPLNs. 1483 &1981 of2013 Page 3 Sanjay had sustained simple injuries at the hands of petitioner-^a/vm^/er
Malhotra and one of the guards.had fired, which had resulted in death of
Gopal Singh Negi and no role has! been attributed to petitioner-^mar
Nath, who was one ofthe guards and the FSL report regarding the Digital
Video Recorder installed in the CCTV Cameras at the spot does not incriminate petitioners.
Itwas submitted on behalfofpetitioners that both petitioners are in custody since September, 2012 and the investigation of this case is complete and trial ofthis case is likely to take time and so, petitioners deserve bail.
Learned Additional Public Prosecutor for respondent-State strongly opposes the grant ofbail to petitioner-accused persons by contending that petitioner-MvzWer Malhotra had exhorted his son to kill the deceased and even petitioner-^w^zr Nath had assaulted one of the witnesses. To assert so, attention of this Court was drawn to statement of some witnesses got recorded under Section 164 of Cr.P.C. but there is no mention ofthese witnesses in initial prosecution version put forth by first informant or the eye-witness. However, it is submitted by learned
Additional Public Prosecutor for respondent-State that it is not a fit case for bail.
Upon hearing and on perusal of the FIR of this case, the status report, the FSL report andthe material on record, I find that the contents ofthe FIR ofthis case is reproduced in Hindi language in the status report and on its bare perusal it becomes evident that ^QtiXionQr-Balvinder
Malhotra had scuffled and assaulted the first-informant of the FIR in question as well as eye-witness-iSawjaj; and no specific role has been
BAILAPPLNs. 1483 &1981 of2013 ^ Page 4 attributedto petitioner-^warTVa^/z. I
During the course ofhearing, attention ofthis Court was drawn by learned counsel for petitioners to statement of eye-witness-Sa«7a>' recorded under Section 161 of Cr.P.C. and even on its perusal, I do not find that the role ofpetitioner exhorting main accused to fire, is there nor any role has been ascribed to petitioner-^war Nath. Even the CCTV footage sent to FSL does not prima facie incriminate petitioners.
In view ofthe aforesaid, without commenting upon merits ofthis case, it is directed that petitioners-MvzWer Malhotra S/o late Sh
Gulshan Malhotra and Amarnath S/o Sh. Jai Dayal be released on bail subject to their furnishing bail-bond in the sum of ^ 30,000/- each with one local surety ofthe like amountto the satisfactionoftrial court.
Boththese applications stand disposed of (SUNIL GAUR)
JUDGE
DECEMBER 13, 2013 s BAILAPPLNs. 1483 &1981 of2013 Page 5
JUDGMENT