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2003 DIGILAW 109 (JK)

Sanjay Sharma v. State Of J. &K.

2003-04-25

S.K.GUPTA

body2003
S.K. Gupta, J. 1. Through the currency of this petition, Sanjay Sharma, accused, facing trial for the commission of offence, contrary to Section 302 read with Sections 34 RPC and 5\23 Arms Act, alongwith other accused, pending at the stage of recording prosecution evidence, has sought to be admitted to bail inter alia on the ground that he is in custody for more than eight years, having been arrested in October, 1994. That out of a list of 23 witnesses given by the prosecution in the challan, five are shown as eye-witnesses of the occurrence. The prosecution has examined only 11 witnesses out of the panel of witnesses in the challan till date, despite enumerable opportunities afforded by the Court. It is further contended that mother of the petitioner, who happens to be a widow, has been advised open heart surgery for replacement of mitral valve in All India Institute of Medical Sciences, to which she has been referred to by Dr. C.D. Gupta. That there is nobody to look after his mother and arrange money for treatment outside the State. It is also submitted that earlier application initiated by the petitioner for grant of bail before Sessions Judge, Jammu, did not merit acceptance and stood dismissed on 20.4.2001. That the case is proceeding at a slow pace and, in such circumstances, the petitioner cannot be permitted to continue in incarceration for further period without adjudication being finalized. Further contention of the petitioner is that the constitutional right of the petitioner to have a speedy trial is denied and, thus, entitles him to be released on bail. 2. In controverting the submissions of the petitioner, detailed objections have been filed by the State in stating that the offences, in which the accused are facing trial, are punishable with death penalty or imprisonment for life. Section 497(1) of the Code of Criminal Procedure clearly bars the grant of bail in such offences by the Court in exercise of its discretion unless the case is covered squarely by the exceptions provided in proviso to Section 497(1) Cr. P.C. It is also stated that the grounds taken by the petitioner for admitting him to bail in this petition were also urged before the Sessions Judge in bail application, which stood rejected vide order dated 24.4.2001. P.C. It is also stated that the grounds taken by the petitioner for admitting him to bail in this petition were also urged before the Sessions Judge in bail application, which stood rejected vide order dated 24.4.2001. Lastly, it is submitted that there is sufficient material on record to prima facie make out a case against the petitioner of his involvement in the commission of offence with which he stands charged and, thus, disentitles him to a concession of bail. 3. I have heard the learned counsel appearing for the respective parties and also perused the report submitted by the learned Sessions Judge, meticulously. 4. The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and other similar considerations. It is also to be kept in mind that for the purpose of granting the bail, the Legislature has used words reasonable grounds for believing� instead of the evidence�, which clearly envisage that the Court dealing with the grant of bail can also satisfy it as to whether there is a genuine case against the accused and the prosecution is able to produce prima facie evidence in support of the charge. It is however, not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt, Of course, the reasons must be recorded, but without discussions of merits and demerits of the application. 5. In the instant case, the accusations against the accused are that he had pumped the bullets into the body of the deceased with a Mouser� in a broad day light in Akhnoor town. 5. In the instant case, the accusations against the accused are that he had pumped the bullets into the body of the deceased with a Mouser� in a broad day light in Akhnoor town. In view of the allegations against the accused enumerated from the record, it is a case of cold-blooded murder and, in such a case, if the bail is granted, the faith of the public, at large, which it has reposed in the judiciary, is bound to shake. It is not disputed that evidence of some of the eye-witnesses are still to be recorded. The report submitted by the Sessions Judge, Jammu with regard to the status of the case and the progress of the trial, which has clearly emanated that the delay in the trial cannot be attributed to the prosecution and the accused has equally contributed to it. 6. It is trite that many other considerations, which the Court has to take into account in deciding that the bail should be granted in non-bailable offence, are the nature and gravity of the offence. The plea put across by the petitioner that he has to take his ailing mother for surgery to the All India Institute of Medical Sciences, Delhi, is found neither sufficient and satisfactory nor can be categorized as a special circumstance to admit the petitioner to bail particularly at the stage when some of the eye-witnesses and other material evidence still remains to be recorded. 7. Indubitably, Article 21 of the Constitution contemplates early end of criminal proceedings through a speedy trial. It encompasses all the stages, namely, stage of investigation, enquiry, trial, appeal, revision and retrial. Delay in each case has to be determined on its own facts and having regard to all attending circumstances including nature of offence, number of accused and witnesses, the work load of the Court concerned, prevailing local conditions, etc. But delay alone cannot by itself be the ground for grant of bail. All other surrounding circumstances should be taken into consideration alongwith it. Article 21 of the Constitution in its significance and sweep makes the deprivation of liberty a matter of grave concern and permissible only when the law authorizing it is reasonable, even-handed and geared to the goals of community good and State necessity enumerated in Article 19. All other surrounding circumstances should be taken into consideration alongwith it. Article 21 of the Constitution in its significance and sweep makes the deprivation of liberty a matter of grave concern and permissible only when the law authorizing it is reasonable, even-handed and geared to the goals of community good and State necessity enumerated in Article 19. Reasonableness postulates intelligent care and predicates the deprivation of freedom by refusal of bail is not for punitive purpose but for the bifocal interest of justice-to the individual involved and society affected. 8. Allegations of cold-blooded murder in broad day light by spraying bullets into the body of the deceased with a Mouser�, a prohibited bore weapon, and the stage of recording prosecution evidence including the eye-witnesses is itself sufficient to invalid the bail plea in principle. Unless it is found from the record that the further prosecution of the accused would be a travesty of justice in view of the peculiar facts and circumstances of a particular case, the Court should not persuade itself to exercise the discretion in granting bail to the accused-petitioner of such serious charges like murder. 9. Taking stock of the facts and circumstances discussed above in its cumulative, there do not appear good and sufficient grounds, in my opinion, necessitating the exercise of discretion in allowing the concession of bail to the petitioner. The petition is devoid of merit and is accordingly dismissed.