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CRM-M-25736-2021 (O&M)
HARSIMRAN SINGH
VS.
STATE OF PUNJAB AND OTHERS

CRM-M-19062-2021 (O&M)
BALWINDER SINGH
VS
STATE OF PUNJAB AND OTHERS

CRM-M-32633-2021 (O&M)
BALWINDER SINGH
VS
STATE OF PUNJAB AND OTHERS

CRM-M-34833-2021 (O&M)
HARSHPREET SINGH @ HARRY
VS.
STATE OF PUNJAB

CRM-M-50056-2021 (O&M)
AMANDEEP SINGH VS. STATE OF PUNJAB

Present: - Mr. Ramnish Puri, Advocate,

for the petitioner
(in CRM-M-32633-2021 and CRM-M-19062-2021)

Mr. Bipan Ghai, Senior Advocate,

with Mr.Pradeep Singh Bindra, Advocate,
for respondent No. 9.

Mr. Rajiv Joshi, Advocate,

for respondents no. 10 and 11 (in CRM-M-32633-2021)

Mr. Sunil Chadha, Senior Advocate with

Ms. Swati Verma, Advocate,
for the petitioners. and Mr. Ramnish Puri, Advocate, for the
complainant (in CRM-M-25736, 34833, 50006-2021)

Mr. Rana Harjasdeep Singh, DAG, Punjab.

****
Case heard via video conferencing.

On 14.02.2022, the following order had been passed by this court:-

“Case heard via video conferencing.

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connected petitions.

Despite the order of this court dated 01.02.2022, no

affidavit of the Commissioner of Police has been filed as regards the
final outcome of the departmental proceedings against Inspector
Balkar Singh, as have been referred to in previous orders.
If such an affidavit is not filed at least five days before
the next date of hearing, the Commissioner of Police, Ludhiana, shall
personally remain present in court on that date itself.
CRM-M-32633-2021
As already noticed in the earlier orders, vide this
petition, the petitioner who is the complainant in the FIR in question
(registered after the unfortunate death of the son, alleging therein the
commission of an offence punishable under Section 302/34 of the
IPC), challenges the order of the learned Additional Sessions Judge,
Ludhiana, dated 08.07.2021, whereby respondents no. 9 to 11 have
been ordered to be released on bail under the provision of Section
167(2) Cr.P.C., with the impugned order thereby reversing the order
of the learned trial court dated 15.06.2021, dismissing their
application filed under that provision.
The reasoning of the trial court was based on the fact
that the report under Section 173(2) Cr.P.C. had been submitted
within 90 days of the arrest of all accused, including respondents no.9
to 11, and consequently simply because that report stated that so far
(up till that point) the police had not gathered sufficient evidence
against respondents no.9 to 11 but would be filing a supplementary
report under the provisions of sub section (8) of Section 173 Cr.P.C.,
that would not mean that the police had found them innocent or that
no charge sheet had been filed; and consequently they were not
entitled to the benefit of 'statutory bail' in terms of the proviso to
Section 167(2) Cr.P.C., even on the touchstone of the judgment of the
Supreme Court in 'Dinesh Dalmia vs CBI', (2007) 8 SCC 770 .
The learned revisional court (Additional Sessions
Judge) however, vide the impugned order, held that the police having
specifically stated that it had not been able to gather sufficient
evidence against respondents no.9 to 11 herein but had arraigned the
other three accused as such in that report, those other accused would
not be entitled to the concession under the provisions of Section
167(2) Cr.P.C., with a report under the provisions of Section 173(2)
thereof having been submitted within 90 days, but respondents no.9 to
11 herein would be entitled to 'statutory bail' in terms of the said
provision, as no report indicting them had been filed.
In the opinion of this court, as a matter of fact though
the ratio of the judgment in Dinesh Dalmia's case (supra) may not
have been applicable as has been pointed out by Mr. Ghai, learned
senior counsel appearing for respondent no.9, inasmuch as the police
had actually found some evidence against Dinesh Dalmia but had
sought further time to gather more evidence and the report under
Section 167(2) Cr.P.C. had been submitted to that effect, and
therefore it was held by the Supreme Court that the police having
already indicted him to a certain extent, he was not entitled to
'statutory bail'; yet, as regards respondents no.9 to 11 herein, in my
opinion (prima facie at this stage), the learned Additional Sessions
Judge erred in his order as did the learned trial court, inasmuch as, on

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the ground that no sufficient evidence had been found against them
till that stage, but with the police still further investigating the matter,
they could have been released on interim bail on the merits of that
report (to the effect that sufficient evidence against them had not been
gathered till that stage), but they should not have been released on
bail under the provisions of sub Section (2) of Section 167 Cr.P.C.,
thereby ousting any chance for the investigating agency to re-arrest
them if eventually some evidence was gathered against them.
In fact, that is what this court now proposes to do, with
no report under Section 173 (8) Cr. P.C. still having been filed as per
all learned counsel, including the learned State counsel.
However, to enable learned senior counsel for
respondents no.9 to 11 to address arguments in terms of any law
settled on that issue, contrary to what has been observed here-in-
above by this court, adjourned to 24.02.2022.
CRM-M-19062-2021
Vide this petition, the petitioner seeks that a fair and
impartial investigation be conducted in case FIR no. 205 dated
03.12.2020 under the provisions of Section 302/34 of the IPC,
registered at Police Station Shimlapuri, District Ludhiana, by an
independent agency like the Bureau of Investigation or the CBI or
even by a Special Investigation Team to be headed by a person not
below the rank of Inspector General of Police.
As a matter of fact in my opinion this petition has been
rendered infructuous with the Bureau of Investigation (commonly
known as the Crime Branch), already investigating the matter; but
learned counsel for the petitioner submits that because even as per the
affidavit filed by the AIG (Crime Range Ludinana), dated
19.01.2022, the report of the Central Forensic Science Laboratory is
awaited to further come to any conclusion qua respondents no. 9 to
11, the matter may be kept pending till a fresh status report is filed.
Adjourned to 24.02.2022 with the AIG (Crime Branch,
Ludhiana) directed to file a status report also stating as to why the
matter was referred to the CFSL and not to any of the Punjab
Forensic Science Laboratories, with the CFSL already burdened with
cases pertaining to not just the CBI in this part of the country but also
from all northern states.
The Director, CFSL, Chandigarh, is also directed to
expedite the matter and submit its report at the very earliest qua the
material that has been sent to that laboratory by the Bureau of
Investigation, Punjab.
CRM-M-25736, 34833, 50056-2021
As regards these three petitions (CRM-M-25736,
34833, 50056-2021), by which the petitioners therein seek to be
admitted to bail under the provisions of Section 439 Cr.P.C, Mr.
Chadha, learner senior counsel appearing for them, reiterates that
there is no evidence at all that the deceased (Daya Singh) was
murdered, with only one scab found with regard to an injury on his
left toe and that the septicemia would also have been caused due to
such injury, and consequently the petitioners who are all young men
studying for a degree in physiotherapy, deserve to be admitted to bail,
they having been in custody for 10 months now; and especially with
no suspicion having been raised at all against them for a period of

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about 1-1/2 months after the deceased had died and with the
complaint made by the father of the deceased being only one so made
thereafter.
Per contra, learner counsel for the complainant points
to the affidavit earlier filed of the AIG, Crime (prior to 27.08.2021),
wherein it was stated that as per the opinion of the Board of Doctors
(finally constituted after specific directions issued by this court), that
though no poison was detected in the contents of the exhibits, another
reason possible for septicemia could be ''Asphyxia due to aspiration
(frothy secretions in both lungs), chemical induced, poisoning
induced (generalized cyanosis and visceral congestion) etc.''
He further submits upon query of this court that the
petitioners herein were, along with their other co-accused, named by
the father as the persons who had murdered his son, upon questions
having been put to them with regard to his death, since he was found
riding the scooter of one of the accused (not the present petitioners
but of Naman Garg), all of them being room mates and with them not
having answered any question satisfactorily; and further, with their
also being CCTV footage available as regards all the accused having
been seen with the deceased one night prior to the discovery of his
dead body.
At this stage learner State counsel submits that he has
just received information that the CFSL report, as regards the CCTV
footage, has been received by the Bureau of Investigation but with the
report saying that it was inconclusive.
For the AIG, Crime, to file a fresh status report,
adjourned to 24.02.2022.
To be shown in the urgent motion list.
To be taken up as the second case of the day.
A photocopy of this order be placed on the file of the
other connected cases.”

As regards the direction to the Commissioner of Police, Ludhiana,

to file an affidavit qua the outcome of the departmental proceedings against

Inspector Balkar Singh, an affidavit dated 21.02.2021 has been filed (though

not 5 days prior to today as directed), that departmental proceedings against

Inspector Balkar Singh have been concluded and he has been awarded a major

punishment of forfeiture of two years of service with permanent effect.

The affidavit of the Commissioner of Police, Ludhiana, is ordered

to be taken on record, with a copy thereof to be supplied to all learned counsel

for the petitioners.

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connected petitions.
An affidavit has also been filed by the AIG, Crime Range,

Ludhiana, dated 23.02.2022, which is also ordered to be taken on record.

After reproducing the detailed orders passed by this court and the

background of the case, eventually as regards directions issued by this court in

the last order passed, it is stated by the AIG that the Central Forensic Science

Laboratory, Chandigarh, has analysed the forged photo images and sent its

report dated 09.02.2022, which is under consideration during investigation of

the case and with “specimen photographs in the same orientation with respect

to the persons appearing in the videos” required for matching/identifications of

persons from CCTV images after construction of the scene of crime.

It is next stated that the said process is not presently possible as

three of the accused, i.e. Harsimran Singh, Amandeep Singh and Harshpreet

Singh, are in judicial custody and that their custodial interrogation is required

to decipher the truth and to question them in the presence of the three other

accused, namely Naman Garg, Sameer Sharma and Kashyap Kumar.

It has next been stated by the AIG that the application filed by the

investigating agency for conducting a lie detector test/polygraph, Brain

Mapping Test and Narco Analysis Test of the latter three accused has been

dismissed by the Area Magistrate on 13.01.2022, with a revision having been

filed before the learned District and Sessions Judge, Ludhiana, on 08.02.2022,

the next date of hearing in that petition being 02.03.2022.

Next, it has been stated by the AIG that the mobile phone of the

deceased, Daya Singh, was deposited with the CFSL, Chandigarh, to extract its

data and a report regarding the same is awaited (with the phone having been

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sent there only on 17.01.2022, with it earlier having been sent to the Punjab

State Cyber Crime Cell, Mohali, but with that laboratory unable to make any

headway because the phone was password locked and could not be bypassed

with mobile forensic tools).

I find that very difficult to digest in view of the fact that about 2

yeas ago a Sub Inspector from the Cyber Crime Cell, Mohali, had appeared

before this court in another case and had very confidently stated that he could

even de-encrypt encrypted Whatsapp data calls. Thus, to simply 'bypass' a

phone password, I do not see why that could not have been done by the Cyber

Crime Cell, Mohali, and therefore the person in whose jurisdiction the said

Cyber Crime Cell, Mohali, (at least of the rank of an Inspector General of

Police), shall file an affidavit as to why, when encrypted data calls can be de-

encrypted, a simple password cannot be bye-passed to unlock a mobile phone

by the State Cyber Crime Cell, which would seem to be otherwise a very basic

function to be performed by that cell.

Last, it has been stated by the AIG (Crime), in his affidavit dated

23.02.2022, that the case is still under investigation to verify the role of the

accused, namely Naman Garg, Sameer Sharma and Kashyap Kumar, and would

be taken to its logical conclusion after receiving and scrutinizing the report

from the CFSL.

All in all the contention of the AIG is that the investigating would

still take some time.

In view of the above, it is considered appropriate that the

petitioners in CRM-M-25736-2021, CRM-M-34833-2021 and CRM-M-50056-

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2021, be admitted to interim bail, upon them furnishing adequate bail and

surety bonds to the satisfaction of the trial court, till the next date of hearing

before this court, with them stated to have been in custody for about 10 months

as recorded in the last order, and with the investigation obviously nowhere near

conclusion as yet.

Ordered accordingly.

However, they would join investigation as and when summoned

and co-operate in the investigation, including being present when the other

three already admitted to bail, i.e. Naman Garg, Sameer Sharma and Kashyap

Kumar, are summoned to join investigation, with it made clear that the last

three accused would also join investigation as and when summoned by the

investigating agency.

Naturally, a short affidavit will be filed by the AIG before the next

date of hearing, as to whether all the accused co-operated in the investigation

or not, and if not, he will specify in what manner they did not co-operate.

Coming to the merits of the petition filed by the complainant in the

FIR, i.e. CRM-M-32633-2021, Mr. Ghai, learned senior counsel appearing for

respondent no.9, cites a judgment of the Supreme Court in Bashir and another

vs. State of Haryana, (1977) 4 SCC 410, as also a recent order of the Supreme

Court based on the said judgment, in Kamlesh Chaudhary vs. State of

Rajasthan, 2021 SCC Online SC 270, to submit that once an accused has

remained in custody for 90 days and an application under Section 167(2)

Cr.P.C. is filed by him seeking release on the ground that the challan has not

been submitted, no matter what reasons are given in the challan submitted

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against other persons, if such persons as are not arraigned as accused in that

challan, they would be entitled to bail under that statutory provision.

Though prima facie at least Bashirs' case may not be applicable,

(subject to further arguments on that by learned senior counsel for the said

respondent as also by learned counsel for the petitioners), adjourned to

23.03.2022.

To be shown in the urgent motion list.

(A photocopy of this order be placed on the files of the connected

cases).

February 24, 2022 (AMOL RATTAN SINGH)

dharamvir// JUDGE

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