Research › Search › Judgment

J&K High Court · body

2003 DIGILAW 394 (JK)

Gh. Mohi-ud-Din Bhat v. State Of J. &K.

2003-12-11

S.K.GUPTA

body2003
The petitioners have approached this court seeking setting aside of the order dated: 5. 11.2003 passed by the learned Sessions Judge, Pulwama in case entitled "State v. Gh. Mohi-ud-din Bhat and Ors." pending investigation, whereby the concession of bail already granted to the petitioner/accused has been withdrawn. 2. The sole grievance of the petitioners/accused projected in the petition is that the bails of the petitioners granted by the court vide its order dated: 10.6.2002 have been subsequently cancelled without notice to the accused and affording them reasonable opportunity of being heard and that the order impugned has been passed by the learned Sessions Judge, Pulwama, solely on the consideration of postmortem and chemical examination report of the VISRA, a copy of which were neither provided to the accused nor they were given any hearing which amounted to denial of natural justice. Further submission made by Mr. Qayoom, learned counsel for the petitioners, is that the bail once granted should not be cancelled unless it is shown that the same has either been mis-used or it is no longer conducive in the interest of justice to allow the petitioners to remain at large. That in this manner, the accused/petitioners, according to Mr. Qayoom, could not be deprived of the right to liberty unless there was overwhelming evidence and reasons made out which necessitated the cancellation of the bail. 3. Setting in facts of the case: 4. That an FIR No. 40/2002 came to be registered for offences under section 447/302/34 RPC on the report of one Mohammad Afzal Mahan in Police Station, Awantipora. It was stated in the complaint that petitioners/accused have physically chastised the deceased which resulted in her death. Bail application for pre-arrest was, however, filed by Miss. Ruhi Akhtar, petitioner No. 4, a minor girl, in the court of learned Sessions Judge, Pulwama and the same was allowed vide order dated: 20.5.2002. Subsequently, another application came to be filed for grant of bail of remaining petitioners/accused before the court of learned Sessions Judge, Pulwama and vide its order dated: 10.6.2002, the petitioners/accused were released on bail on their furnishing bail bonds in the amount of Rs. 20,000/- with one surety of like amount each. Subsequently, another application came to be filed for grant of bail of remaining petitioners/accused before the court of learned Sessions Judge, Pulwama and vide its order dated: 10.6.2002, the petitioners/accused were released on bail on their furnishing bail bonds in the amount of Rs. 20,000/- with one surety of like amount each. For facility of reference, the operative part of the order is reproduced hereunder: "Without commenting further on the merits of the case it will be in the interests of justice if the four accused above named are released on bail only till further orders with the condition that they shall not leave the valley without permission of this court and they shall not tamper with the prosecution evidence and shall attend the investigating team as and when required. They are directed to furnish a personal bond with one surety each in the sum of Rs. 20,000/. This bail concession shall be valid only till further orders which mean that at any time after the police receives a fresh report of postmortem and chemical examination of the Visra the matter will be again looked into. The prosecution will be within its rights to ask for reconsideration of this order of bail if they receive a favourable postmortem report and F.S.L. examination results". 5. It was during the investigation that the police had sent a VISRA of the deceased to Forensic Science Laboratory (for short "FSL"), Srinagar. The report received from the FSL, Srinagar disclosed that the death had occurred due to poisoning. It was perhaps this circumstance which weighed with the learned Sessions Judge at the time of granting bail to the petitioners/accused vide order dated: 10.2.2002. The investigating agency, in order to ascertain as to whether the death of the deceased has occurred due to poisoning or because of beating, sent the Visra to FSL, Jammu as also to Central FSL, Chandigarh. The report received from FSL, Jammu indicated that the death has been caused due to poison (Aluminium Phosphate). After about eight months, another report was received from Central FSL, Chandigarh, which ruled out the possibility of the death of the deceased by poisoning. The investigating agency, therefore, was left with there reports with regard to the cause of death of the deceased. After about eight months, another report was received from Central FSL, Chandigarh, which ruled out the possibility of the death of the deceased by poisoning. The investigating agency, therefore, was left with there reports with regard to the cause of death of the deceased. Reports from FSL, Srinagar and Jammu indicated the cause of death by poisoning as against the report from Central FSL Chandigarh that ruled out the possibility of poisoning. It was on the receipt of report from Central FSL, Chandigarh that an application came to be initiated before the learned Sessions Judge, Pulwama by the Public Prosecutor seeking cancellation of the bail of the accused/petitioners. It was stated in the application that the petitioners/ accused were granted conditional bail. The Crime Branch, who are investigating the case, had further collected material/ evidence in support of the fact that the death of Maimoona had taken place not by poisoning but on account of violence as was indicated in the FSL report obtained from concerned Laboratory at FSL, Srinagar and Jammu. The learned Sessions Judge relying on the recitals made in the application by Public Prosecutor and without issuing notice to the accused/petitioners and providing them an opportunity of being heard, after the receipt of the report from Central FSL, Chandigarh, ordered for withdrawal of the bail already granted in favour of the petitioners/accused. 6. It may be pointed at the threshold that the power under section 561-A of the Cr.P.C can be exercised by the High Court only to prevent the abuse of process of the Court and otherwise to secure the ends of justice. The authority of the Court exist for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court must have power to prevent that abuse. 7. No doubt one of the cardinal principals of natural Justice is that no order by a Court under a duty to act judicially ought to be passed adversely to a party without affording it an opportunity to be heard but at the same time it cannot be said that it is of universal application in all kind of cases under section 437(5) of the Cr.P.C, a court which released an accused on bail has also the power to cause his arrest and commit him to custody. Normally an opportunity ought to be afforded to an accused released on bail to be heard before his bail is cancelled or concession is withdrawn. Only in abnormal cases and on conditions made out before the court that a peremptory order canceling the bail and causing an accused to be arrested and detain him in custody, ought to be passed. 8. In the instant case, admittedly the concession of bail earlier granted to the petitioners/accused has been withdrawn by the learned Sessions Judge, Pulwama without issuing notice to the accused/petitioners and affording them an opportunity of hearing. It is also in dispute that the bail has been withdrawn relying on the report of the Central FSL, Chandigarh, received subsequently and stated to be adversely against the accused/petitioners. It is also indicated in the impugned order of cancellation of bail that it is clear case of murder and the accused need to be arrested in whose favour bail under sections 302, 149, 447, 323 and 451 RPC has been granted earlier. After going through the record it is not understandable as to where from learned Sessions Judge, made these observations when the position is converse as the accused/petitioners were granted bail under section 302,149, 447, 323 and 451 RPC which is a clear exhibition of non-application of mind, at the very infraction of the principles of natural justice. This position has also been conceded by Mr. M. A. Rathore, AAG, appearing for the respondents when taken through the impugned order passed by the learned Sessions Judge, Pulwama dated: 5.11.2003 and also the order dated: 10.6.2002 granting the concession of bail to the petitioners/accused at the first instance. It is clear case of abuse of process of the court inviting indulgence of this Court in exercise of its powers under section 561-A Cr.P.C. 8. In view of what has been stated and discussed above, the petition is allowed. The order impugned dated: 5.11.2003 is set aside and quashed. The learned Sessions Judge, Pulwama is, however, directed to pass fresh orders on the application of the learned Public Prosecutor seeking cancellation of the bail granted to the petitioners/accused after affording them an adequate opportunity of being heard. The parties, through their counsel, are directed to cause their presence before the learned Session Judge, Pulwama on 24.12.2003.