A.S.Nehra, J. - (1.) Keser Singh has filed this petition under Section 482 the Code of Criminal Procedure (hereinafter called of the Code) for quashing the order and charged framed Vis. 5 of the Terrorists and Disruptive Activities (prevention) Act, 1987 (for short, the Act) in case F.I.R. No. 15 dated 7.3.1993 (for under Section 302/34 I.P.C. Section 25 of the Arms Act and Section 5 of, the Act, registered in Police Station, Amloh district Patiala. The petitioner has also prayea A that he be released under Section 167 (2) of the Code on bail.
(2.) The case was registered on the basis if the statement made by Jagir Singh. The allegations g mentioned in the First Information Report read as under: - I am resident of village Rajgarh and am agriculturist. We are four brothers. My elder brother has two sons. Kamaljit Singh is aged 20 years and Gurmit Singh aged about 16 years, is younger to him. My nephew is agriculturist. To day at about 7.30 A.M. I along with my brother Bant Singh and Kamaljit Singh were coming to our house from our fields. When we reached near the house of Balbir Singh son of Bachan Singh Harijan, then Kesar Singh son of Bhagat Singh and his father Bhagat Singh son of Udhay Singh Jat came there. Bhagat Singh raised a lalkara that we should bring to end the- dispute of Pahi with Kamlajit Singh, Keser Singh took out a country made pistol from the dub. My nephew Kamaijit Singh ran towards the fields of Makand Singh. Kesar Singh also ran after him along with his pistol. We raised noise not to kill him and we also ran after him. Kesar Singh fired a shot. Kamaljit Singh lost his balance on, receipt of shot and when he was going to fall, Kesar Singh fired another shot hitting Kamaljit Singh. Kamaljit Singh fell in the fields. Bhagat Singh and Kesar Singh ran away alongwith their pistol. We saw that Kamaljit Singh had received two shots in his back. We at once put him in the trolley and took him to civil hospital Amloh. The doctor referred him to Rajindra Hospital, Patiala and when we reached near Noorpura bus stand, my nephew Karnaljit Singh died. We have left his dead body in the dead house Amloh and have come to report the matter. Bhagat Singh, co accused of the petitioner, applied for bail and he was granted bail by the Additional Session Judge, Patila on 7/6/1993. Only a lalkara has been attributed to Bhagat singh therefore, he was granted bail, Petitioner filed an Application for bail on 10/7/1993 on the round that Since the challan had not been presented within 90 days, therefore, petitioner is entitled to be released on bail under Section 167 (2) of the Code. On 22/7/1993, it was brought to he notice of the learned Sessions Judge Patiala hat section 5 of the Act had been added and, therefore, petitioner is not entitled to be released m bail and his bail application was, declined.
(3.) Mr. R.S. Ghai, Senior Advocate, learned counsel for the petitioner, has contended that the designated Court has erred in law in framing the charge under Section Sof the Act against the Petitioner, that the petitioner was not involved in the commission of the terrorist and disruptive activities, that merely because a fire arm has been used for committing an offence, it cannot be said that the petitioner has committed an offence under Section 5 of the Act without any further material to implicate the petitioner in such offence and that, taking the facts of the case, the introduction of offence under Section 5 of the Act was uncalled for and the case has to be tried by the ordinary Court. In support of his argument, he has relied upon Bijender Kumar v. State of Haryana, and Rattan Singh v. State of Haryana. Notice of this petition was given to the State and reply has been filed by Sh. Malkit Singh Inspector, S.H.O. Police Station, Amloh. It has been submitted by Shri Boparai that in order to attract the provisions of Section 5 of the Act, mere possession of fire - arms which are specified in category III (a) of Schedule of the Arms Rules 1962, is sufficient. In the reply, the S.H.O has not stated that the weapon recovered from the petitioner was used by him in terrorist disruptive activities.;