NIRMAL SINGH,J. - (1.) THIS is a petition under Section 438 Cr.P.C. for bail in case FIR No. 247 dated 13.11.2000 registered at police station Dharamkot, Distt Ferozepur, under Sections 302, 307, 148, 149, 120-B IPC and Sections 25/27/54/59 of the Arms Act.
(2.) THE case against the petitioner was registered on the statement of Des Raj Mukhija. The FIR reads as under :- "That I am resident of Kamboj Mohalla Dharamkot. My brother Harmesh Kumar Mukhija is having a Commission Agent Shop in Dana Mandi, Dharamkot. Today Harmesh Kumar Mukhija was sitting on the seat in the room. I and Rajpal son of Milkha Singh were sitting near him on stools and Chanderpal resident of Bakar was standing outside. It was about 9.35 A.M. That Gurbux Singh alias Kukku resident of Kamalke Hall, near old Satsang Bhawan Dharamkot armed with 12 bore gun of small Butt, Surjit Singh resident of Amiwala, who stays with Gurbux Singh armed with 12 bore gun, Happy who lives at Gillan Dharamkot and runs an electronic shop at old Bus stand armed with a pistol came inside the shop. As soon as they entered the shop, Gurbux Singh @ Kuku raised a lalkara that Mukhija should not be allowed to escape and he fired from his 12 bore gun at my brother Harmesh Kumar Mukhija. Simultaneously Surjit Singh fired at my brother Harmesh Kumar Mukhija with his 12 bore gun, which hit him on forehead and head. We lay ourselves near the seat while raising alarm of Mar Ditta and all these three tried to run out of shop. Chinderpal tried to catch hold of Surjit, then Happy fired with his pistol at Chinderpal which hit him on right side of his neck. He fell down there. We also came out running. Two more persons were also standing outside the shop, whom we can recognise if they came before us. All live (five ?) alongwith their weapons went towards Dana Mandi while raising lalkaras. This conspiracy of this case has been hatched by Sital Singh M.L.A. We have old enmity with Gurbux Singh @ Kukku and Sital Singh MLA. We have cases also pending against each other. We tried to take care of Harmesh and Chinderpal but Harmesh could not bear the injury and died on the spot. My brother Milkha Singh who is having a shop nearby also came there on hearing the noise. He was left near the dead body and Chinderpal was sent to Civil Hospital Dharamkot after arranging a vehicle and I alongwith Rajpal son of Milkha Singh resident of Deh have came here to inform you. Action be taken. Harmesh Kumar is having cases under Sections 302 IPC and 307 IPC and other cases pending with Sital Singh MLA." Shri R.S. Ghai, learned Senior Counsel appearing on behalf of the petitioner submitted that the petitioner has been involved in this case due to enmity with the complainant party. He submitted that the petitioner was in custody in an excise case and was arrested by the Ludhiana police on 12.11.2000 at 3.45 P.M. He further submitted that petitioner was medically examined on the next day at 12.55 P.M. and was produced before the illaqa magistrate at 3.40 P.M. He submitted that the occurrence in this case is alleged to have been occurred at 9.35 A.M. on 13.11.2000. He submitted that when the petitioner is in custody then there is no question of participating the petitioner in the occurrence.
(3.) ON the other hand Shri Rajan Gupta, learned counsel appearing for the CBI submitted that this case has a long history and the crime has been committed in connivance with the Punjab police. He submitted that the police has created false documents to help the petitioner. He submitted that when the investigation was not being properly conducted by the Punjab police then Smt. Parkash Kaur Mukhija wife of the deceased moved a petition in this Court and this Court vide order dated 22.2.2001 directed the CBI to hold investigation. He submitted that during the investigation, it has been found that the rojnamcha of police station Sadar Ludhiana has been tampered with. He pointed out that in the police lock up there was one person by the name of Sanjeev Kumar who was detained under Section 302 IPC and DDR No. 1 also depict the same. There was no other person detained by the police but subsequently name of Gurbux Singh has been incorporated in DDR No. 1 showing him to be in custody under Excise Act. He further pointed out that the Punjab police has even forgotten to see in hurry that the offence under which Gurbux Singh has been detained is bailable one. He further pointed out that DDR Nos. 1 and 15 have been fabricated with an intention of screening offender Gurbux Singh from legal punishment. He submitted that as per the police when the petitioner was detained he was taken to the civil hospital for medical examination at 12.15 P.M. but there is no entry in the rojnamcha to the effect that petitioner was taken for medical examination. He submitted that as per rules if any person who is in custody need to be taken to the hospital or somewhere else then there must be an entry in the rojnamcha. 4. Learned counsel further pointed out that the CBI during investigation has collected evidence against the petitioner that he has committed murder. He further pointed out that Sanjeev Kumar who is in custody in a case under Section 302 IPC and two SPOs working as Santries in police station Sadar Ludhiana made a statement that there was no person in the police lock up on 12/13.11.2000 by the name of Gurbux Singh. He further pointed out that in the FIR the name of the petitioner finds mention. It also finds mention in the FIR that petitioner has fired shot upon Harmesh Mukhija as a result of which he died and the persons who have witnessed the occurrence have also made a statement to that effect and out of the witnesses one is the gunman of Harmesh Kumar Mukhija. In the last, he submitted that it is not a case where the petitioner should be granted bail under Section 438 Cr.P.C. ;