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2009 DIGILAW 366 (JK)

Ab. Rashid Sofi v. State Of J. &K.

2009-07-28

J.P.SINGH

body2009
1. Abdul Rashid Sofi, facing trial in a Sessions trial, under Sections 302, 364, 120-B and 201 RPC, arising out of FIR no. 173 of 1997 registered at Police Station, Ganderbal, has approached this Court questioning the trial courts order of May 2, 2009, whereby he has been refused bail. 2. Facts necessary for the disposal of this petition may be stated thus:- Abdul Hamid Malik instituted a report that his brother Ghulam Nabi Malik had been lifted by Arshad Ahmad Sofi, Mohd Yaseen Sofi and Mst. Khati, on 21.06.1997 with the help of a local Army Unit when they were accompanied by an un-known person, and until 16.8.1997, he did not get any clue about the whereabouts of his brother. He went to the Police Station on 22.6.1997 but was prevented by the petitioner, a Constable in Police Station, Ganderbal from lodging the First Information Report, telling him that he would manage release of his lifted brother, which however, did not happen, whereupon he filed complaint before the IGP, DIG, SSP and the Deputy Commissioner of Srinagar District. He continued searching his brother and in this process came in contact with Mohd Sultan Mir accused, who assured his brothers release on payment of Rs. 10,000/- but despite payment, his brother was not released, and ultimately, the dead body of his brother was recovered from Ganderbal Power Canal in a decomposed condition which borne signs of torture. 3. FIR no. 173/1997 was, accordingly, registered under Sections 302, 364 and 109 RPC. The investigation of the case appears to have been later transferred to the Crime Branch, which, on its completion, concluded that Jameela Akhtar informed her mother that the deceased Ghulam Nabi Malik had molested her when she went to his shop for purchasing some under-garments, whereafter, the deceased went to the house of Mohd Yaseen Sofi to explain his position but was beaten instead. The investigation revealed that the petitioner Abdul Rashid Sofi was posted as Selection Grade Constable in Police Station, Ganderbal and had contacts with Mohd Sultan Mir, a police informer, who organized a raid on the house of the deceased on 21.6.1997 at around 9.00 p.m., accompanied by the other accused, who were dressed in Army uniform, lifted the deceased and, ultimately, his dead body was recovered from the Power Canal Ganderbal, tied in rope, with marks of torture. 4. 4. During the investigation of the case, Mohd Sultan Mir turned approver making a statement under Section 164 Cr.P. C before the Magistrate according to which Major Pereira of 3rd Kamanoon Rifles and the petitioner were responsible for the murder of Ghulam Nabi Malik. Major Pereira had been promised a Pashmina Shawl worth Rs. 60,000/- for this. 5. The case was committed to the Court of Sessions but with a direction that Major R. Pereira should appear before the Committal Court to exercise his option for trial by the civil court or by the Army court. Finding the order of the Committal Magistrate, bad in law, the case was sent back to the Committal Court. The case was again committed to the Sessions declaring Major R. Pereira as absconder. The case appears to have been sent back again to the Committal Magistrate for proceeding strictly in accordance with the provisions of Section 205 (D) of the Code of Criminal Procedure. The Chief Judicial Magistrate, Srinagar, to whom the case was transferred, issued a warrant of arrest against Major R. Pereira. The case was again committed to the court of Sessions. This committal order was once again set aside by the learned 3rd Additional Sessions Judge, Sriangar. 6. The order passed by the 3rd Additional Sessions Judge, Srinagar was assailed by Major Pereira seeking quashment of the FIR no. 173 and the order which the Committal Magistrate had passed on 11.12.2003. Rest of the accused too filed Criminal Revision petition no. 48/2004, Bail Application nos. 36/2004 and 48/2004 in this Court. 7. All these petitions were disposed of by a learned Single Judge of this Court on 25.5.2007, in terms whereof, Arshad Ahmad Sofi and Mohd Yaseen Sofi were admitted to interim bail whereas the petitioner and Mohd Sultan Mir were refused bail, but with a direction to the trial court to consider their bail application at the time of considering the case as to whether or not it was fit for trial. Major R. Pereiras petition under Section 561-A Cr. P. C was, however, dismissed and the case was sent to the trial court for further proceedings. 8. The trial court, accordingly, initiated process to secure the presence of Major Pereira. 9. Major R. Pereiras petition under Section 561-A Cr. P. C was, however, dismissed and the case was sent to the trial court for further proceedings. 8. The trial court, accordingly, initiated process to secure the presence of Major Pereira. 9. The order passed by this Court was questioned by Major Pereira in the Honble Supreme Court of India and on the matter coming up for consideration, the Supreme Court passed an interim order on 11.7.2007, which is reproduced herein for reference:- "Taken on Board. Delay condoned. Issue notice. Meanwhile, operation of the impugned order as well as execution of non-bailable warrants is stayed." This order was later on clarified on 23.01.2009 as follows:- "Heard learned counsel for the parties. We clarify that the interim order dated 11th October, 2007 will not come in the way of the consideration of bail applications of the other accused. The trial Court shall now proceed with the bail applications of the other accused and decide the same on their own merits in accordance with law." 10. The petitioners bail application filed on 24.10.2007 has been rejected by the learned Sessions Judge, Ganderbal, who is presently in seizing of the case, vide his order impugned in this petition. 11. I have considered the submissions made at the Bar by the petitioners learned counsel and the learned Deputy Advocate General, appearing for the State. 12. The facts of the case as noticed by the learned Sessions Judge, Ganderbal in his order of May 2, 2009, and as demonstrated in this petition, reveal that because of the procedural wrangles, the trial court has not been able to record the evidence which the prosecution intends to produce against the accused, much-less opine as to whether or not a prima facie case for trial has been made out by the prosecution in a case which was produced by the police before the Committal Magistrate in October, 2003, i.e., more than five and a half years ago, to deal with the offence which is stated to have been committed about twelve years ago. 13. The petitioner is in custody since August 2003, i.e., for about six years. 14. The right of an accused to Speedy Justice, flowing from Article 21 of the Constitution of India, is well recognized. 13. The petitioner is in custody since August 2003, i.e., for about six years. 14. The right of an accused to Speedy Justice, flowing from Article 21 of the Constitution of India, is well recognized. The incarceration of the petitioner-accused, for six years, without any trial, and that too, for no fault of his, may not thus be justified for any further detention of the petitioner until consideration of the case for trial, would violate Article 21 of the Constitution of India. 15. According to the prosecution story, the petitioner and Major R. Pereira are stated to have been primarily responsible for the abduction and murder of Ghulam Nabi Malik. Prosecution case against them thus rests on the same footing. Major R. Pereiras plea that there was no case made out against him for trial, having not been accepted by this Court, is pending consideration before the Honble Supreme Court of India, which, in terms of its interim order, has stayed the trial, as a consequence whereof, he continues to enjoy his personal liberty. The petitioner, however, on the other hand, on similar allegations, is in custody for about six years. 16. Keeping in view the facts of the case, the time which the trial of the case may take, after the conclusion of the proceedings before the Honble Supreme Court of India, I do not see any justification to keep the petitioner in custody atleast, until his trial actually commences. 17. Rejection of the petitioners application on an earlier occasion by this Court cannot, as argued by the learned State counsel, be construed as bar for consideration of his bail application in view of the changed circumstances, which have taken place after the rejection of his earlier bail application by this Court, because of which he has remained without trial for more than two years. 18. Accordingly, treating this petition as Bail application, the petitioner is admitted to Interim-bail until the commencement of his trial, on his furnishing personal Re-cognizance and Re-cognizance of two sureties in the amount of Rs.50,000/- each, to the satisfaction of the trial Court. Petitioners release on Bail shall, however, be subject to the following conditions:- 1. He shall continue appearing in the trial court and shall not leave its jurisdiction, unless otherwise permitted by the court; 2. He shall not come in contact or influence in any manner whatsoever, the prosecution witnesses. 19. Petitioners release on Bail shall, however, be subject to the following conditions:- 1. He shall continue appearing in the trial court and shall not leave its jurisdiction, unless otherwise permitted by the court; 2. He shall not come in contact or influence in any manner whatsoever, the prosecution witnesses. 19. In case of violation of one or the other conditions aforementioned, the trial court shall be at liberty to pass such orders as warranted under law for committing the petitioner to custody.