Ashu Sabharwal Alias Ashu v. State of Punjab

ANOOP CHITKARA, J. DDR No. Dated Police Station Sections 34 24.06.2024 'A' Division, Amritsar 452, 427, 148, 149 IPC in FIR No. Dated Police Station Sections 98 24.06.2024 'A' Division, Amritsar 323, 341, 506, 148, 149, 325 IPC (added later on)

¶1The pettoner apprehending arrest in the DDR captoned above has come up before this Court under Secton 482 of Bharatya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking antcipatory bail.

¶2In paragraph 16 of the bail petton, the accused declares that he has clean antecedents and is not involved in any other case except cross case. However, as per paragraph 10 of the status report dated 11.11.2024 the accused has the following criminal antecedents: Sr. No. FIR No. Dated Offenses Police Station

¶184 13.05.2024 447, 448, 427, 148, A Division, Amritsar 149 IPC

¶3The facts and allegatons are being taken from the reply filed by the State, which reads as follows: order/judgment. 1 "3. That the brief and relevant facts of the case are that aforesaid FIR No. 98 dated 24.06.2024 was registered on the basis of the statement of Sunny alias Kadar, who had alleged therein that on 23.06.2024 at about 03:30/04:00 PM, he, his brother Sonu Sabharwal and Ravi Kumar and Rajiv Khokhar and his brother Aniket Khokhar of their opposite side had gone at the shop of Arora Bus Travels for the setilement of their old dispute but the compromise could not be effected and he and his brother Sonu Sabharwal went to their house and when they were about to leave for their shop, he saw Rajiv Khokhar, Aniket Khokhar, Parveen Khokhar and Joban Gill armed with a kahi dasta along with 6/7 uniden5fied persons atiacked his brother Sonu and when he came to forward to rescue his brother, all the aforesaid accused also gave him bea5ng. He further alleged that Parveen Khokhar raised a lalkara to teach them a lesson and on listening the noises, his wife Vandhna and nephew Sameer also came at the spot and Sameer was armed with a kahi for his self defence but the co-accused Rajiv Khokhar snatched kahi from Sameer and caused injury on the head of his wife Vandhna with a blow of a kahi and injury on the head of his brother Sonu and when he raised hue and cry, all the aforesaid accused fled away from the spot. The detailed facts men5oned by Sunny alias Kadar in his aforesaid statement has been reproduced in the true transla5on of the aforesaid FIR No. 98 dated

24.06.2024 atiached with the pe55on as Annexure P-2, which may kindly be read as a part of present paragraph as same are not repeated here for the sake of brevity."

¶4Counsel for the pettoner submits that it is a cross-case and pettoner was not aggressor. He prays for bail by imposing any stringent conditons and contends that further pre-trial incarceraton would cause an irreversible injustce to the pettoner and their family.

¶5The State's counsel opposes bail and refers to the reply.

¶6It would be appropriate to refer to the following portons of the reply, which read as follows: "6. That a cross case vide G.D No. 34 dated 24.06.2024 under sec5on 452, 427, 148 and 149 Indian Penal Code was registered on the basis of the complaint filed by Parveen Kaur, who had alleged therein that on 23.06.2024, there was dispute between her family and Sonu Sabharwal during the day5me and at about 10:15 PM, Sameer, Ashu(pe55oner), Kadar, brother in law of Sameer, Hula along with 35 uniden5fied persons forcibly trespassed into her house and damaged their window panes, fridge, LED TV, Laptop and other household items and at the 5me order/judgment. 2 of the alleged occurrence, her daughter Seema was alone at her house and all the aforesaid accused had taken a gold of about Rs. 10 Lakh and cash of Rs. 6 Lakh from the almirah of Rajiv Khokhar. The detailed facts men5oned by Parveen Kaur in her aforesaid complaint has been reproduced in the true transla5on of the G.D No. 34 dated 24.06.2024 atiached with the pe55on as Annexure P-1, which may kindly be read as a part of present paragraph as same are not repeated here for the sake of brevity.

¶7That beside the pe55oner, the names of the co-accused nominated as accused in the present cross case are as under:- i. Sameer son of Sonu; ii. Sunny alias Kadar son of Sham Lal; iii. Brother in law of Sameer; iv. Vishal alias Hulla son of Rinku. Role of the pe##oner

¶8That as per the version of the complainant Parveen Kaur, the pe55oner as an ac5ve member of an unlawful assembly consis5ng of him and the other co-accused had forcibly trespassed into her house and damaged their window panes, fridge, LED TV, Laptop and other household items and at the 5me of the alleged occurrence, her daughter Seema was alone at her house."

¶7A perusal of para 6 of the reply clearly points out of the cross-case. At this stage, it is very difficult to determine who was the aggressor? Even the complainant is stated to have handed over a video clipping to the investgator as mentoned in the order dated 03.12.2024. Thus, it is not a case for custodial interrogaton or pre-trial incarceraton.

¶8Pre-trial incarceraton should not be a replica of post-convicton sentencing. The evidence might be prima facie sufficient to launch prosecuton or to frame charges, but this Court is not considering the evidence at that stage but is analyzing it for the stage of antcipatory bail. An analysis of the above does not justfy custodial interrogaton or pre-trial incarceraton.

¶9Given the above, the penal provisions invoked coupled with the primafacie analysis of the nature of allegatons and the other factors peculiar to this case, there would be no justfiability for custodial interrogaton or the pre-trial incarceraton at this stage.

¶10Without commentng on the case's merits, in the facts and circumstances order/judgment. 3 peculiar to this case, and for the reasons mentoned above, the pettoner makes a case for bail.

¶11Given above, provided the pettoner is not required in any other case, the pettoner shall be released on bail in the FIR captoned above subject to furnishing bonds to the satsfacton of the Arrestng Officer, and if the maJer is before a Court, then the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before acceptng the surety, the concerned Officer/Court must be satsfied that if the accused fails to appear, such surety can produce the accused.

¶12While furnishing a personal bond, the pettoner shall menton the following personal identficaton details:

¶1AADHAR number

¶2Passport number (If available) and when the aJestng officer/court considers it appropriate or considers the accused a flight risk.

¶3Mobile number (If available)

¶4E-Mail id (If available)

¶13This order is subject to the pettoner's complying with the following terms. The pettoner shall abide by all statutory bond conditons and appear before the concerned Court(s) on all dates. The pettoner shall not tamper with the evidence, influence, browbeat, pressurize, induce, threaten, or promise, directly or indirectly, any witnesses, Police officials, or any other person acquainted with the facts and circumstances of the case or dissuade them from disclosing such facts to the Police or the Court.

¶14The pe55oner is directed to join the inves5ga5on within seven days of uploading this order on the official webpage of the High Court of Punjab and Haryana and as and when called by the Inves5gator. The pettoner shall be in deemed custody for Secton 27 of the Indian Evidence Act, 1872/ Secton 23 of BSA, 2023. The pettoner shall join the investgaton as and when called by the Investgatng Officer or any Superior Officer and shall cooperate with the investgaton at all further stages as required. In the event of failure to do so, the prosecuton will be open to seeking cancellaton of the bail. During the investgaton, the pettoner shall not be subjected to third-degree, indecent language, inhuman treatment, etc.

¶15In case the Investgator/Officer-In-Charge of the concerned Police Staton arraigns another secton of any penal offense in this FIR, and if the new secton prescribes a maximum sentence that is not greater than the sectons mentoned above, then this bail order shall be deemed to have also been passed for the newly added order/judgment. 4 secton(s). However, suppose the newly inserted sectons prescribe a sentence exceeding the maximum sentence prescribed in the sectons mentoned above; then, in that case, the Investgator/Officer-In-Charge shall give the pettoner notce of a minimum of seven days, providing an opportunity to avail the remedies available in law.

¶16This bail is conditonal, and the foundatonal conditon is that if the pettoner indulges in any non-bailable offense, the State may file an applicaton for cancellaton of this bail before the Sessions Court, which shall be at liberty to cancel this bail.

¶17Any observaton made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶18A certfied copy of this order would not be needed for furnishing bonds, and any Advocate for the Pettoner can download this order along with case status from the official web page of this Court and aJest it to be a true copy. If the aJestng officer wants to verify its authentcity, such an officer can also verify its authentcity and may download and use the downloaded copy for aJestng bonds.

¶19Petition allowed in terms mentoned above. All pending applicatons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

07.01.2025 Jyot-II Whether reportable: No. order/judgment. 5

206-2 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 07.01.2025 Ashu Sabharwal @ Ashu ...Pettoner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Raghav Soni, Advocate for the pettoner. Mr. Sukhdev Singh, A.A.G, Punjab assisted by ASI Parvinder Singh. Mr. Rajat Dogra, Advocate for the complainant. ****