Full Judgment Text
2022:DHC:3004
$~48-50
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order pronounced on 19.07.2022
+ BAIL APPLN. 1349/2022
YOGESH @ YOGI ..... Petitioner
Through: Mr. Abhimanyu Kampani, Advocate.
versus
STATE (NCT OF DELHI) ..... Respondent
Through: Ms. Meenakshi Chauhan, APP.
+ BAIL APPLN. 746/2022
HONEY ..... Petitioner
Through: Mr. Abhimanyu Kampani, Advocate.
versus
STATE ..... Respondent
Through: Ms. Meenakshi Chauhan, APP.
+ BAIL APPLN. 747/2022
SACHIN MANCHANDA ..... Petitioner
Through: Mr. Abhimanyu Kampani, Advocate.
versus
STATE ..... Respondent
Through: Ms. Meenakshi Chauhan, APP.
CORAM:
HON'BLE MR. JUSTICE TALWANT SINGH
Talwant Singh, J.:
1. These three matters are connected as three different accused persons
have applied for anticipatory bail by filing three separate petitions.
However, the said anticipatory bail applications are taken together as there is
common FIR and common incident.
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2. The applications have been filed in FIR No. 912/2021, registered
under Section 302/147/148/149, read with Section 34 of IPC, dated
02.11.2021. It has been submitted that a charge sheet has been already filed
before the Court on 28.01.2022 against the accused already arrested.
3. In BAIL APPLN. No. 1349/2022 of the petitioner Yogesh @ Yogi, it
has been mentioned that he is aged about 28 years and is a businessman by
profession and father of a two-year old child.
3.1 In brief, it has been mentioned that on 01.11.2021 at around 8:45
p.m., the petitioner along with certain other persons was present at the
construction site of his brother-in-law, namely, Sachin Manchanda alias
Bunty (who is also an applicant in bail application No. 747/2022) at B-108,
Sidh Peeth Hanuman Mandir, Raghubir Nagar, New Delhi.
3.2 In the meantime, 4-5 attackers came to the said location on one
motorcycle and one scooter and they were carrying pistols/desi kattas. They
started firing at Sachin Manchanda alias Bunty. The petitioner along with
other persons tried to save Sachin Manchanda alias Bunty. Sachin
Manchanda alias Bunty was hit on his thigh; one Fateh Kumar was hit on
his abdomen. Another bullet fired by the deceased Jaskaran Singh alias
Little got deflected and injured one of the attackers, namely, Firoz. FIR
bearing No. 911/2021 was registered under Section 307/34 IPC and Section
25/27/54/59 of the Arms Act at PS Khyala on the basis of the MLC
conducted on Sachin Manchanda alias Bunty.
3.3 After firing certain shots, all the attackers started fled from the spot.
They managed to escape, except the deceased, who was overpowered by
Fateh Kumar and other accused persons in the present case, and thereafter, a
crowd gathered at the spot and the attacker, namely Jaskaran alias Little was
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thrashed by them. The petitioner is alleged to be a part of the said crowd.
The deceased was taken to DDU Hospital and the present FIR was
registered.
3.4 On 02.11.2021, the deceased expired and the FIR was converted to
one under Section 302/147/148/149/34 IPC. As per the post mortem report,
the death was caused due to shock as a result of multiple bruises and
fractured bones associated with head injury. As per the petitioner, there is
nothing on record to show that the petitioner had hit the deceased on his
head. The aggressors had come with a pre-determined mind to shoot and kill
Sachin Manchanda alias Bunty as there was a history of enmity with one of
the aggressors.
3.5 The CCTV footage would show that the petitioner tried to save the
deceased from the co-accused. The deceased was beaten up by the persons
present at the spot.
3.6 The anticipatory bail application moved by the present petitioner was
dismissed on 03.03.2022 by the learned ASJ. The second anticipatory bail
application was also dismissed on 28.03.2022.
3.7 The grounds on which the bail has been prayed are that the petitioner
does not have any role to play in the incident which occurred on 01.11.2021;
the deceased along the with aggressors attacked the brother-in-law of the
petitioner with pistols and desi kattas; none of the offence can be made out
against the present petitioner; the petitioner cannot be charged under Section
302 IPC even if he is treated as part of the mob as he had no intention to
cause death of the deceased and he had no knowledge that the beating would
result in causing the death of the deceased; the beating of the deceased
occurred due to grave and sudden provocation of certain members of the
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group and this case falls under Section 304 IPC as being culpable homicide
not amounting to a murder; there was no pre-meditation on the part of the
petitioner to cause death of the deceased; offence under Section 302 IPC is
not made out against any of the accused persons as originally the FIR was
registered under Section 308/34 IPC; the offences under Section 147/148
IPC cannot be sustained against the petitioner in any manner; the petitioner
did not have the common intention of causing death of the deceased.
3.8 A group of persons who had beaten the deceased cannot be attributed
to the common intention of causing death and the accused can only be
charged under Section 320 IPC.
3.9 The learned ASJ has erroneously concluded on the basis of CCTV
footage that the petitioner had common intention of causing death of the
deceased; the petitioner is being connected to the present case being brother-
in-law of the main accused, namely, Sachin Manchanda alias Bunty and he
is entitled to bail, being person with clean antecedents, deep roots in the
society and belonging to a reputed family.
4. Notice was issued.
5. Status report has been filed, in which it is mentioned that on
02.11.2021, information was received that a patient, namely, Jaskaran Singh
alias Little was admitted by PCR in injured condition in hospital. When SI
Sunil reached the hospital, he found that Jaskaran Singh alias Little was
admitted in DDU Hospital.
5.1 On MLC, it was mentioned that it was a case of gun shot injury and
physical assault and there were in total about 20 injuries. The statement of
the injured could not be obtained, eye witnesses could not be found in the
Hospital, ASI visited the spot, collected certain exibits, spot was inspected
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through Mobile Crime Team and FSL Team and a case under Secion 308/34
IPC was registered.
5.2 A cross case was also registered on the same date on the statement of
Sachin Manchanda alias Bunty, who also got injured in the incident.
5.3 Later on, Jaskaran Singh alias Little expired in the hospital. Section
308 IPC was amended to Section 304 IPC.
5.4 The accused Aatif Khan alias Ajju was arrested in the present case
and on his instance, other accused Ramesh alias Mama was arrested.
5.5 Statements of the eyewitnesses were recorded and on the basis of
these statements, one more accused, namely, Vijay Manchanda alias Shunty
was arrested on 03.11.2021.
5.6 On 04.11.2021, CCTV footage of the whole incident was provided by
the brother of the deceased, in which a large number of persons were seen
beating the deceased very brutally. On the basis of the CCTV footage,
multiple injuries being caused, MLC details and circumstances, Section 304
IPC was amended by Section 302 IPC. On the basis of the CCTV footage
and statement of the eyewitnesses, 4 more accused persons, namely, Bablu
alias Bale, Fateh Kumar, Rohit and Shubham Grover were also arrested and
5 co-accused persons, namely, Sachin Manchanda alias Bunty, Prem Chand
alias Billi, Nikhil alias Ballu, Yogesh alias Yogi and Honey also got
identified.
5.7 The petitioner was also present at the spot when Heera Singh and
Jaskaran Singh alias Little came on the scooty. Sachin Manchanda alias
Bunty was also present at the spot. Heera Singh was caught hold by Sachin
Manchanda alias Bunty, meanwhile, Fateh Kumar jumped over Jaskaran
Singh alias Little and held him. Somehow, Heera Singh and his associates
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escaped from there but Jaskaran Singh alias Little was captured by Sachin
Manchanda alias Bunty, his brother Vijay alias Shunty, Fateh Kumar and
their associates. The present petitioner also came at the spot and started
beating Jaskaran Singh alias Little with iron rod, who was also beaten with
wooden sticks, iron rods, a heavy cement block and stones, due to which he
got multiple injuries.
5.8 Jaskaran Singh alias Little was in the custody of the present petitioner
and his associates and he was not able to run away from there. Even after
that, they removed his clothes and continuously kept beating him. Jaskaran
Singh alias Little was seen crying to stop the beating by the assailants but
his beating went unstopped for about 15 minutes and later on he succumbed
to his injuries. Non-bailable warrants were issued against the persons who
could not be found. Proceeding under Section 82 Cr.P.C. were initiated
against these accused persons and they have been already declared
Proclaimed Offenders by the concerned Court.
5.9 NBWs had been issued against all the accused persons and they have
been already declared Proclaimed Offenders. In the case of the present
petitioner, the proceeding under Section 82 Cr.P.C. were initiated against
him and the matter was stated to be pending for declaring him as a
Proclaimed Offnder. Under these circumstances, the prosecution has prayed
for dismissal of the present anticipatory bail application.
6. BAIL APPLN. 746/2022, has been filed by Honey. His anticipatory
bail application was dismissed by the learned ASJ on 28.02.2022.
6.1 It has been submitted that the FIR registered against him is
completely false and fabricated; the applicant has clean antecedents. He has
also given the details of the circumstances under which the present FIR was
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registered and initially, the accused persons were booked under Section
308/34 IPC, later on converted to 304/34 IPC and eventually to Section
147/148/302/34 IPC.
6.2 The grounds on which accused Honey has prayed for bail are that he
has been falsely implicated; the accused is stated to be present at the spot
when Heera Singh and Jaskaran Singh alias Little came along with other
gang members with intention to kill Sachin Manchanda alias Bunty, who
was shot on his thigh by Heera Singh. The assailants were heavily armed
with dangerous weapons and they attacked upon the co-accused, his friends.
The applicant/accused and his associates retaliated the attack with bare
hands to diminish the impact of the attack and neutralise the assailants with
a view to save their lives and reasonable force was used to dislodge the
possibility of any grave harm to them.
6.3 Even the CCTV footage shows that the accused/applicant and his
friends were not carrying any arms. The prosecution is alleging that the
accused/applicant is liable for murder of the deceased by giving beatings to
him but it has not been established on the basis of any evidence on record.
6.4 Accused Sachin Manchanda alias Bunty was immediately removed
from the spot by his family members and he was admitted to hospital. There
is a cross-FIR regarding the same incident showing that Sachin Manchanda
alias Bunty and co-accused Fateh were shot by the assailants at the spot.
The applicant/accused had left the spot of the incident after Sachin
Manchanda alias Bunty was removed to hospital and only co-accused Aatif
Khan alias Ajju was present at the spot when police had apprehended him.
The entire incident is of a scuffle where the applicant/accused and other co-
accused persons tried to retaliate and save themselves from being shot.
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6.5 The prosecution is relying upon the disclosure statement of the co-
accused, which are not admissible. The same are not substantive pieces of
evidence.
6.6 NBWs have been issued against the present petitioner and proceeding
under Section 82 Cr.P.C. is stated to be pending. The applicant has
submitted that there is no risk of him fleeing from the interest of justice, if
he is granted bail.
7. In the Status Report filed, the details of the incident have been given
as noted herein above. In response to the bail application of co-accused, it
has been submitted that the present petitioner Honey was present at the time
of the incident at the spot. The petitioner along with his associates had
brutally beaten Jaskaran Singh alias Little with wooden sticks, iron rods,
heavy cement blocks and stones, resulting in multiple injuries. The
petitioner was seen in CCTV footage beating the deceased with iron rod
mercilessly and removing the clothes of the deceased.
7.1 The deceased was not able to run away from there. Thereafter, his
clothes were removed and he was continuously beaten for about 15 minutes,
which resulted in deep wounds and finally he succumbed to his injuries.
Efforts were made to trace out the accused Honey and other co-accused.
7.2 On 08.11.2021, NBWs were issued against the co-accused persons.
The present accused along with his co-accused have been declared
Proclaimed Offenders by the concerned Court as they have deliberately
avoiding the arrest. The petitioner is stated to be involved in two other cases
of PS Khyala. Offences committed by the petitioner are heinous in nature
and bail has been strongly opposed.
8. The Bail Application No. 747/2022 has been moved by the accused
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Sachin Manchanda alias Bunty in FIR No. 912/2021. His earlier bail
application was dismissed by the learned ASJ on 28.02.2022. It has been
submitted that the FIR registered against the petitioner is false and
fabricated. Thereafter, the incident as detailed above, has been repeated and
the bail has been prayed on the grounds that the applicant/accused was
present when Heera Singh and Jaskaran Singh alias Little along with other
gang members arrived with the intention to kill him and his friends.
8.1 Heera Singh shot the applicant on his thigh. The assailants were
heavily armed with dangerous weapons. The applicant/accused and his
friends retaliated the attack with bare hands in good faith to save their lives
with use of reasonable force. The allegations of the prosecution that the
petitioner had given beatings to the deceased and he had provoked his co-
accused persons to kill him are false. The prosecution has not been able to
establish these facts by bringing any evidence on record.
8.2 The accused/applicant was immediately removed from the spot by his
family members and was taken to the nursing home. An FIR was registered
at the behest of the applicant bearing No. 911/2021. A PCR call was made
by the wife of the applicant/accused at 9:30 p.m., which is indicative of the
fact that the present accused and the co-accused Fateh had been shot by the
assailants.
8.3 It is further submitted that the story of the prosecution is doubtful.
The applicant/accused was not present at the spot when the deceased was
beaten up by the co-accused persons. There is no evidence on record that the
applicant/accused had provoked any of the co-accused persons to kill the
deceased. Only one co-accused, Aatif Khan was arrested from the spot.
Mere statements of the co-accused persons are not sufficient to charge the
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present petitioner with the offence and the applicant is ready to abide by the
conditions to be put for his release on anticipatory bail.
9. The State has filed the Status Report giving details of the incident and
registration of 2 FIRs regarding the same incident. It has been submitted that
the applicant Sachin Manchanda alias Bunty was also seen in the CCTV
footage beating Jaskaran Singh alias Little mercilessly after he was captured
by the applicant, his brother Vijay alias Shunty, Fateh Kumar and his
associates.
9.1 Jaskaran Singh alias Little was in custody of the applicant Sachin
Manchanda alias Bunty and his associates. His clothes were removed and he
was continuously beaten for about 15 minutes. Sachin Manchanda alias
Bunty also got injured in this incident and he was admitted to Khetra Pal
Hospital. When he came to know that his brother has been arrested by
police, he ran away from the hospital and since then, he is still at large.
Efforts were made to trace the pesent accused and his associates but they
could not be traced out.
9.2 NBWs were issued but could not be executed and the absconders have
been already declared Proclaimed Offenders under Section 82 Cr.P.C. The
petitioner Sachin Manchanda alias Bunty is stated to a hardcore criminal,
who is involved in 16 other cases of PS Khyala, Geeta Colony, Anand
Vihar, Hari Nagar, Jagatpuri and Rajouri Garden and these details have been
given in para 11 of the Status Report. On these grounds, the bail has been
strongly opposed.
10. Learned counsel for the petitioner has relied upon the following
judgements:
(i) ‘Ashish v. CBI’ in Bail Application No. 143/2022
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(ii) ‘Abul Kalam Azad v. State of Madhya Pradesh’ in MCRC No.
6917/2020
(iii) ‘Nitin Chandrrakant v. State of Maharashtra’ in Anticipatory Bail
Application No. 1880/2016
(iv) ‘Sri Kalyan Bandyopadhyay’ CRM No. 2898/2015
(v) Order dated 05.03.2022 passed by the Ld. MM, Tis Hazari Court,
New Delhi in FIR No. 912/2021 registered at PS Khyala.
11. I have heard the learned counsel for the petitioners as well as APP for
the State in detail.
12. The incident, which is more or less detailed by the petitioners as well
as the State, is that the present petitioners were present at the spot when
Heera Singh, Jaskaran Singh alias Little and other assailants came there and
they attacked Sachin Manchanda alias Bunty, one of the petitioners here,
causing gun shot injury on his thigh and one of his co-accused was also
injured. All the persons present at the spot from the present petitioners’ side
retaliated. Heera Singh and few of his associates were caught and beaten.
12.1 After some time, Heera Singh and his other associates were able to
free themselves from the clutches of the present petitioners and their
associates and they ran away. However, the petitioners and their associates
were able to catch hold of Jaskaran Singh alias Little and the CCTV footage
shows that he alone was beaten up for about 15 months after disrobing him
and he was attacked with iron rods, wooden sticks, cement blocks, causing
multiple injuries on him, which have been detailed in the post mortem report
as under:
“ EXTERNAL EXAMINATION
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External Injuries
1. Multiple bruised lacerated wounds, present in an area of
size 20 cm x 12 cm, over head, situated 15 cm above eyebrow,
involving bilateral parietal, right temporal and occipital region, with
size ranging from 3 cm x 1 cm x bone deep to 16 cm x 1 cm x bone
deep. On exploration, effusion of blood present throughout the
scalp.
2. Incised wound, vertically placed, of size 7 cm x 0.2 cm x
bone deep, present over right ear.
3. Multiple abrasions, reddish brown present in an area of size
6cm x 3cm over left side of forehead.
4. Abrasion reddish brown of size 3cm x 2cm present over
right side of forehead.
5. Abrasion reddish brown of size 1cm x 1cm present over
root of nose with fracture of underlying nasal bone with effusion of
blood along the fracture.
6. Contusion reddish brown of size 8cm x 6cm present over
right side of face situated just below right eye and 2cm outer to mid
line. Multiple abrasions reddish brown of vaiious sizes present
within the contused area.
7. Contusion reddish brown of size 4cm x 3cm present over
chin.
8. Multiple scattered bruises, reddish brown, having various
dimensions (shape and size) present over back of abdomen and
chest, covering an area of about 30%. On dissection each bruising
contained effusion of blood.
9. Multiple scattered bruises and abrasions, reddish brown in
colour having various dimensions (shape and sizes) present on the
lateral aspect and frontal aspect of left side of chest. On dissection
each bruising contained effusion of blood.
10. One oval penetrating injury of dimension 1.4 cm x 1.2 cm x
bone deep present on the4 posterior aspect of left elbow. On
exploration the underlying bone i.e. lower end of humerus fractured
with clotted blood collection into the vicinity of fracture site and
wound.
11. Left elbow remarkably swollen and distorted with extensive
bruising on the covering skin. On dissection the underlying bone
i.e. upper part of shaft of ulna fractured and relatively displaced
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with massive clotted blood collection into the upper part of forearm,
elbow and lower end of arm. Puncture wound, of size 1 cm x 0.5
cm present over back of left forearm situated 8 cm below elbow
joint with bony chip of ulna protruding out.
12. Multiple contusions and abrasions, reddish brown in colour,
of various sizes, present in an area of size 10 cm x 5 cm over back
of left hand and wrist.
13. Multiple contusions and abrasions, reddish brown in colour,
of various sizes, present in an area of size 25 cm x 8 cm over outer
aspect and back of right arm.
14. Contusion reddish brown of size 10 cm x 8 CRL.M.A.
present over outer aspect and back of right forearm situated just
below elbow joint.
15. Multiple contusions and abrasions reddish brown of various
sizes, present in an area of size 12 cm x 6 cm over back of right
hand and wrist.
16. Multiple bruises, reddish brown, (6 in number on right leg)
and multiple bruises on the anterior aspect of both legs apart from
one linear bruise on the right thigh and one linear bruise on the left
knee.
17. Multiple linear (rail track pattern) bruises, reddish brown,
present over the both thighs.
18. One oval penetrating wound having dimension of 1.5 cm x
1.5 cm with ragged margins present on the anterior aspect of right
knee which extended into the substance of underlying bone i.e.
upper part of condoyle of tibia with fracture with absence of
abrasion collar, blackening, tattooing or singeing.
19. Multiple abrasions, reddish brown, of various sizes, present
over both legs and feet.
INTERNAL EXAMINATION
HEAD:
A- Scalp: Sub scalp contused at multiple areas especially
adjacent to lacerations site on the upper mid part of head.
B- Skull: Intact; NAD.
C- Meninges and Brain: Subdural thin layered haematoma
present on the occipital lobes of cerebrum with generalised
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subarachnoid hemorrhage and brain oedema.
D- Base of Skull: Fractured middle cranial fossa at its floor
extended on both sides with containing adequate amount of clotted
blood.
NECK:
a. Hyoid Bone/Thyroid Carrtilage/Cricoid Cartilage/Tracheal Rings
& Mucosa: NAD.
CHEST (THORAX):
1. Ribs and Chest Wall: Multiple bruises present on the
different part of chest as mentioned above. Multiple ribs fractured
on both sides.
2. Oesophagus: NAD
3. Pleural Cavities: NAD
4. Lungs: Pale
5. Heart: NAD
ABDOMEN:
1. Abdominal wall : NAD
2. Peritoneal Cavity : NAD
3. Stomach:
b. Contents : Brownish paste like material about 200 ml.
c. Mucosa : NAD
4. Small intestine : Filled with fluid and gases; walls: NAD
5. Large intestine : Filled with faecal matter & gases; walls: NAD
6. Liver : Pale
7. Spleen : Pale
8. Kidneys : Pale
GENITAL ORGAN:
1. Urinary Bladder : Empty
2. Rectum : Empty
3. Genital organs : NAD
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SPINAL COLUMN : Intact; NAD
Preserved items:
1. Blood on gauze dried.
2. Clothes (one grey underwear).
All exhibits sealed with seal of “PM DDUH” and handed over to
concerned IO.
OPINION
1. Cause of Death: Shock as a result of multiple extensive bruises and
fractured bones associated with head injury. The injuries sustained on
the body of deceased could be inflicted by different kind of means and
weapons like punching, slapping, kicking, stone pelting, sticks, rods
and sharp heavy pointed object. The involvement of multiple persons
and multiple weapons of offence cannot be ruled out.
2. Manner of death: Homicidal.
3. Videography and photography done.
4. Total no. of inquest papers: Twelve (12) Papers and three X-ray
films enclosed with signature.”
12.2 There were as many as 19 external injuries, consisting of multiple
bruised lacerated wounds, multiple bruises and multiple abrasions, scattered
bruises, penetrating injuries, multiple linear bruises, etc. on different parts of
the body of the deceased. The sub-scalp was contused at multiple areas and
the base of the skull was fractured in the middle. There were multiple
fractures of the ribs on both the sides. The cause of death has been given as a
shock as a result of multiple extensive bruises and fractured bones
associated with head injury. It has been also opined that the injuries could be
inflicted by different kinds of means and weapons like punching, slapping,
kicking, stone pelting, sticks, rods and sharp heavy pointed objects.
12.3 The presence of the accused persons has not been denied at the spot.
The CCTV footage has supported the version of the prosecution. The ground
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of self defence, prima facie is not available at this stage to the petitioners as
they have extensively acceded the right of self defence. There is no possible
or plausible reason as to why the deceased was mercilessly beaten after all
his other associates had run away from the spot and for the next 15 months
or so, he was the lone victim of the fury of the present accused persons
along with their associates. There is no ground as to why his cries for
leaving him alone were not heeded to and his clothes were removed and he
was beaten up in naked condition.
12.4 It will be the prosecution’s effort to prove during trial as to who had
caused which injuries. The plea of the petitioners that they had no
knowledge that death can be the ultimate result, cannot be appreciated at this
stage only on the ground that there were large number of persons who were
part of a crowd, which attacked the deceased and caused grievous injuries on
this person, resulting in his ultimate death within few hours. The injuries on
the deceased as detailed above cannot be caused only in the case of self
defence and the plea of the self defence, prima facie at this stage, is found to
be not available to the accused persons.
12.5 This is a case of heinous offence. The applicants have been charged
under Section 302 IPC apart from other Sections of IPC. They have to be
interrogated in custody and there are no grounds available to them on the
basis which they can be enlarged on anticipatory bail.
12.6 The applications for anticipatory bail are without any reasonable
grounds and all the three applications moved by accused, being bail
application No. 746/2022 of Honey, bail application No. 1349/2022 of
Yogesh and bail application No. 747/2022 of Sachin Manchanda are hereby
dismissed.
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13. It is needless to mention that any observations made herein above are
only for the purpose of deciding these applications. The main cause will be
decided on merit by the learned Trial Court without getting influenced by
any such observations made in the present order.
TALWANT SINGH, J
JULY 19, 2022
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