V.K.JHANJI,J - (1.) THIS will dispose of Criminal Miscellaneous No. 8029-M of 1994 as well as Criminal Miscellaneous No. 10432-M of 1994.
(2.) CRIMINAL Miscellaneous No. 10432-M of 1994 is a petition preferred by Shashi Kumar Gupta under Section 438 of the Code of Criminal Procedure seeking prearrest bail in case R.C. No. 12 of 1992 SPE, Chandigarh, registered against him under Sections 302/120-B of Indian Penal Code on the ground that he has already been allowed bail under Sections 364, 386 and 511 of Indian Penal Code. Criminal Misc. No. 8029-M of 1994 has been filed by C.B.I. for cancellation of bail granted to Shashi Kumar Gupta which now stands converted into Sections 302/120-B of Indian Penal Code. For the disposal of these petitions, it is necessary to notice the following facts:- Shashi Kumar Gupta, petitioner is the elder brother of Pardeep Kumar Gupta. On the statement made by Shashi Kumar Gupta, an FIR No. 130 of 1990 was registered. Petitioner in his statement had stated as follows:- "I am living at the address given above and in the same very house, my younger brother Pardeep Kumar is also living with family who has two sons Annurag aged 12 years and Sachin aged 10 years and they are studying in St. Thomas School, Jagadhri. Yesterday, at about 3 P.M. both these brothers left the house saying that they were going for playing the video game to the shop of Surinder K. Gulati and today in the evening also, they had gone to his shop and his shop is in the Model Town. After waiting till late at night for the return of these two children who did not return, we made enquiries from the houses of friends of the children but could not have any trace of the whereabouts of the two. As far as, we think, it appears that both these boys have been kidnapped by someone known or unknown person to kill them. The identification features of these boys are: Anurag:, Aged about 12 years Fair Complex Wearing Blue Jean pant, White shirt,, yellow sweater having border at the bottom of red colour. Upper teeth from front side are little protruding outside, (sic) Sachin : Age 10 years,, wheatish colour wearing blue baggie, (sic) brown I was going to report the matter to the Police Station when you have met. Action may be taken. I have heard my statement which is correct. Sd/- Shashi Kumar Gupta."
(3.) SINCE the police could not come to know about the whereabouts of the children, Pardeep Kumar, father of Anurag and Sachin, apprehending that proper investigation is not being made by the police, filed Civil Writ Petition No. 3868 of 1992 in this Court seeking a direction for entrusting the investigation to C.B.I. A Division Bench of this Court, vide order dated 24.4.1992, allowed the writ petition and directed the registration of the case by the S.P., C.B.I., Chandigarh. A further direction was given to the S.P. to conduct the investigation under his own supervision. In pursuance to this direction, C.B.I. registered a case on 8.6.1992. On suspicion, petitioner Shashi Kumar Gupta was arrested on 7.9.1992 but vide order dated 23.9.1992 was allowed bail by the special Judge, Chandigarh. It may be noticed at this stage that till that time, the case had not been converted into Sections 302/ 120-B of Indian Penal Code. During the investigation, C.B.I. arrested from Patiala one Sunil Kumar Gautam, resident of P.S. Bhora Kalan District Muzaffarnagar. In his statement made under Section 164, Cr.P.C. Sunil Kumar Gautam admitted before the Special Magistrate that both the sons of Pardeep Kumar Gupta were got kidnapped by the petitioner on account of property dispute between the two brothers. He also stated that he was one of the members of the gang hired by the petitioner. He also named Kala alias Afzal, Irfan, Ramesh Kumar, Pappu, the other members of the gang. While Sunil Kumar Gautam was in judicial custody, C.B.I. filed an application before the Special Judge for cancellation of bail which had earlier been granted to the petitioner. The application was dismissed by the Special Judge, Chandigarh, vide order dated 11.4.1994 primarily on the ground that the offence was alleged to have been committed in District Yamuna Nagar and as such Special Judge, Ambala has the jurisdiction to consider the question of cancellation of bail. Accordingly, C.B.I. was directed to move the competent Court having jurisdiction in the matter. Being aggrieved of the order, C.B.I. has filed Criminal Miscellaneous No. 8029-M of 1994 for cancellation of bail granted to Shashi Kumar Gupta whereas Criminal Miscellaneous No. 10432-M of 1994 has been preferred by petitioner shashi Kumar Gupta seeking pre-arrest bail in the case which now stands converted into Sections 302/120-B of Indian Penal Code.;