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2009 DIGILAW 447 (JK)

Javed Iqbal Matoo v. State

2009-09-11

SUNIL HALI

body2009
1. One Shakeel Ahmad Ahanger, lodged a missing report in police station, Shopian, that his wife Neelofar Jan and sister Asiya Jan had left their home at about 4 p.m. on 29th of May09, to visit their orchard at village `Deegam Nagabal but did not return thereafter. The said report is stated to have been lodged at about 23.50 hours on the aforementioned date. On the report being filed, a search party headed by the Sub Inspector of Police station, Shopian, went to look for the two women but their whereabouts could not be traced. On this, the search was abandoned at about 3 a.m. on 30th of May09. However, the concerned policy party again started the search at about 5.15 a.m., and at about 6.30 a.m., on 30th of May09, the dead body of Neelofar Jan was located near Rambiara Nalla. After an hour, the dead body of Asiya Jan was also recovered from down stream about one and a half kms away from the place where body of Neelofar Jan was found. The death of Mst Asiya Jan and Neelofar Jan, under suspicious circumstances resulted in wide spread public anger. 2. Thereafter, the bodies of both the deceased women are stated to have been taken for post mortem to the district hospital at Shopian. From the record, it transpires that the post mortem was initially conducted by three doctors but the same could not be concluded due to the intervention of crowd which had gathered on hearing the news of death of both the deceased women. The post mortem was then conducted by a second team of doctors who were brought from Pulwama. As indicated above, after the recovery of two dead bodies, there was a wide spread public anger. A Special Investigation Team was then constituted by the Dy.Inspector General of Police, SKR, Anantnag, vide his order dated 30th of May09, to conduct the inquest proceedings under Section 174 Cr.P.C. which were already initiated vide DD report No. 37 dated 29th of May09, by the concerned officer-in-charge of Police station, Shopian. The said team was to work under the supervision of petitioner No.1. 3. A Public Interest Litigation bearing OWP No. 515/09, came to be filed by the J&K High Court Bar Association, Srinagar, in this court. The said team was to work under the supervision of petitioner No.1. 3. A Public Interest Litigation bearing OWP No. 515/09, came to be filed by the J&K High Court Bar Association, Srinagar, in this court. When this petition came up for hearing on 15th of July09, a Division Bench of this court passed the following directions:- ".....It is made clear that on arrest of those officers any bail application filed by them or on their behalf shall be transferred to this court for a decision or the bail application, if any, may be filed directly to this court. In the event such application(s) is/are transferred to this court or filed in this court, the same shall be decided by this Bench. We direct the Special Investigating Team to produce those four officers on arrest before the Registrar Judicial on a date and time to be fixed in consultation with Registrar Judicial, High Court of J&K, Srinagar for the purpose of drawing their blood samples which blood samples, on being drawn, shall be sealed by the Registrar Judicial, Srinagar Wing of this Court and such sealed blood samples shall be sent immediately to the Central Forensic Science Laboratory, CBI, New Delhi, for the purpose of preparing their DNA profile. The DNA of those police officers shall, thereupon, be matched with DNA profile of the vaginal semen of the deceased ladies. (Registrar Judicial may have to seek help from some authorities so that sampling is bottled and sealed in the prescribed manner). We also feel that it would be appropriate on the part of the Special Investigating Team to undertake Narco Analysis Test of those four police officers. We are told that there is no facility available in the State for carrying out Narco Analysis Test and that Forensic Science Laboratory being extremely busy, it is difficult to obtain an early date for carrying out Narco Analysis Test of the four police officers. We, accordingly, request the Central Government through Mr Anil Bhan, Additional Solicitor General, to impress upon the authorities of the Forensic Science Laboratory, Gandhi Nagar, Gujarat, to give an early date for such test to be carried out of the four police officers. We, accordingly, request the Central Government through Mr Anil Bhan, Additional Solicitor General, to impress upon the authorities of the Forensic Science Laboratory, Gandhi Nagar, Gujarat, to give an early date for such test to be carried out of the four police officers. In the event the Special Investigating Team is of the view that those two witnesses, who have deposed under Section 164-A of the Code of Criminal Procedure and who have been interrogated also need to be put to such test, it shall inform the same to the Central Government through Mr Bhan, whereupon the Central Government, it is requested, shall obtain an early date for such Narco Analysis Test of the two witnesses by Forensic Science Laboratory, Gandhi Nagar, Gujarat The report suggests that there is a possibility of pinpointing a troops carrier vehicle which may have been involved in the crime with which we are concerned. The earlier report suggested that human hairs were found from a particular vehicle. The members of the Special Investigating Team have informed us in camera that those hairs were collected from the selfsame vehicle. We, therefore, direct those hairs be sent forthwith to the Central Forensic Science Laboratory, CBI, New Delhi, for preparing DNA profile. After DNA profile of such hairs and of the younger victim are prepared, let the same be matched..................................." 4. While passing the afore-noticed directions, the Division Bench also directed that the suspended police officers who are alleged to have been involved in destroying the evidence of the crime be also arrested for the purposes of interrogation followed by collection of their blood samples for preparation of DNA profile of those officers in order to match the same with the DNA profile of the vaginal semen of the deceased women. It was in pursuance to the said directions, the petitioners came to be arrested. 5. Feeling aggrieved of the aforesaid order passed by the Division Bench, a Special Leave Petition bearing No. 17430/09, was filed by the petitioners before the Apex Court, which came to be disposed of vide order dated 24th of July09, with the following directions:- "...........The petitioners would be at liberty to move the bail application before the Sessions Court at Shopian and learned counsel appearing for the State submits that the Investigation officer would be present along with the case Diary on Monday i.e. 27.7.2009, before the Sessions Court. Sessions court may consider the bail application at the earliest and pass appropriate orders untrammelled by the observations made by the High Court. To that extent, the order of the High Court is set aside. We have already stayed the Narco Analysis Test to be conducted on the petitioners. If SIT finds that any such test is to be conducted, they would be at liberty to move the appropriate court for such test and the Court may pass appropriate orders only on the basis of the Courts permission, any such test would be conducted...." 6. After the disposal of the Special Leave Petition aforementioned, a bail application under Section 496/497 of the Code of Criminal Procedure was filed by the petitioners before the court of learned Principal Sessions Judge, Shopian, who after hearing the learned counsel for the parties, dismissed the same vide order impugned dated 6th of Aug09. It is against this order, the present Criminal Revision has been filed. Along with the said Criminal Revision petition, an application for grant of bail has also been filed by the petitioners. 7. Before adverting to the controversy raised in this case, it would be fruitful to indicate the course of investigation undertaken by the Special Investigation Team (SIT) and its conclusions. In this regard, certain facts are required to be enumerated. 8. Admittedly, there is no FIR against the present petitioners indicating their involvement in the commission of crime. There is only a missing report lodged by the husband of Neelofar Jan in which he does not disclose the involvement of the petitioners in any manner. The search party headed by the Sub Inspector of Police, Shopian Police Station, accompanies the complainant party in tracing the missing ladies. After the dead bodies of both Neelofar Jan and Asiya Jan were found, the post mortem of the bodies of two deceased women was conducted initially by three doctors namely Dr Bilal Ahmad, Dr Nazia Hassan and Dr Bilques Jan, with which the relatives of the deceased women were not satisfied as a result of which another team of doctors from Pulwama was summoned to conduct the post mortem. 9. 9. As noticed above, the first team of doctors conducted the post mortem but the vaginal swab could not be collected as according to Dr Nazia Hassan, who was one of the member of the said team of doctors, the rigor mortis had already set in. The second team of doctors who conducted the post mortem, consisted of Dr Ghulam Qadir, Dr Mohd Maqbool Mir and Dr Nighat Shaheen. Dr Nighat Shaheen, a Gynaecologist, took the vaginal swabs from the body of two deceased women and sent it to the FSL, Srinagar, on 30th of May09, for its opinion. It is also revealed from the case diary that the vaginal secretions allegedly taken from the bodies of two deceased women were in the custody of Dr Nighat Shaheen and other doctors of Pulwama from 30th of May09 to 1st of June09, when it was sent to the FSL, Srinagar, because when the vaginal secretions were firstly sent to the FSL on 30th of May09, the same were returned as the slides were not properly sealed. After the slides were re-sealed by Dr Shaheen, the same were delivered to the FSL, Srinagar, on 1st of June09. The result of the analysis revealed that human spermatozoa were detected on the exhibits collected during the postmortem and the FSL opinion prima-facie disclosed the commission of offence under Section 376 RPC. On receipt of this report, an FIR bearing No. 112/09 was registered under Section 376 RPC in police Station, Shopian. On 8th of June09, the Chief Medical Officer, Shopian, vide its letter dt. 7th of June09, furnished the post mortem reports of two deceased women to the police station, Shopian. On perusal of these reports, it was found that in respect of Asiya Jan, the cause of death was Hemorrhage followed by Cardio Vascular Arrest and in respect of Neelofar Jan, it was due to neurogenic shock. However, in both the post mortem reports, it was recorded that the complete post mortem could not be carried out due to the hostile atmosphere. This was followed by another post mortem report from CMO, Pulwama, vide his letter dt. 9th of June09. However, in both the post mortem reports, it was recorded that the complete post mortem could not be carried out due to the hostile atmosphere. This was followed by another post mortem report from CMO, Pulwama, vide his letter dt. 9th of June09. In the said report, the opinion with regard to Asiya Jan was sexual assault and the cause of death was due to hemorrhage/shock due to bleeding of multiple injuries and in respect of Neelofar Jan, the cause of death recorded was due to the neurogenic shock with sexual intercourse. On this report being furnished, the commission of offence under Section 302 RPC was made out, and as such, incorporated in the FIR mentioned above along with commission of offence under Sections 326, 342, 201 and 120-B RPC. 10. It be further noted that in terms of the directions issued by a Division Bench of this court on 15th of July09, noticed above, the blood samples of the petitioners were taken for sending the same to CFSL, CBI, New Delhi, for preparing their DNA profile. The DNA profile of the petitioners were to be matched with the DNA profiles of vaginal smears of deceased women. It was also directed by the Division Bench that as the human hairs have been recovered from a particular vehicle, those be also sent to the CFSL, CBI New Delhi, for preparing DNA profile thereof. In pursuance to the said directions, the human hairs so recovered were sent to the CFSL, CBI, New Delhi. In terms of report dt. 5th of Aug09, which has been received from CFSL, CBI, New Delhi, the DNA profiles of all the four police officers are not consistent with the DNA profiles generated from the male fraction DNA of both the glass slides. The report further reveals that the DNA profile generated from the viscera materials of the two deceased women are not consistent with the DNA profile generated from the female fraction DNA which was obtained from the vaginal smears of the two glass slides. It has thus been reported that the vaginal smears on the two slides have not originated from the bodies of the two deceased women. 11. Regarding the DNA profiles of the hairs, it is reported that the same do not match with the DNA profile of either of the police officers arrested. 12. It has thus been reported that the vaginal smears on the two slides have not originated from the bodies of the two deceased women. 11. Regarding the DNA profiles of the hairs, it is reported that the same do not match with the DNA profile of either of the police officers arrested. 12. The Inspector General of Police, Kashmir, who is supervising the SIT, was asked to indicate as to when the investigation is likely to be concluded. In the affidavit filed by him, nothing has been disclosed regarding the progress made in the investigation. It is stated in the affidavit that since it is a case of blind murder and rape and no direct evidence has so far emerged and the only circumstantial evidence in the shape of vaginal smeared slides has been fudged, it would not be possible to specify the exact time limit within which the investigation would be completed. No progress in investigating the fudging aspect has been made till date. 13. The circumstances which have become the basis for seeking arrest of the petitioners are enumerated below:- i/ That after the recovery of two dead bodies of Neelofar Jan and Asiya Jan, no FIR was registered by the petitioners and instead inquest proceedings under Section 174 Cr.P.C., were initiated as a result of which, important evidence was allowed to be destroyed; ii/ That after the dead bodies were recovered, the concerned SHO, did not take steps to preserve the evidence which was available on the spot and instead, allowed the evidence to be destroyed; iii/ That the clothes of two deceased women were not seized by the petitioners; iv/ That after the dead body of Mst Asiya Jan was recovered, the petitioner No.1 did not go on spot even though, he received the information in this regard and the dead bodies of both the deceased women were brought to the hospital by the locals of that area which included the relatives of the deceased. I have heard learned counsel for the parties and perused the record. 14. The case of the petitioners is that there was no material available with the respondent-State on the basis of which, petitioners could be arrested. Learned counsel for the petitioners referred to order dt. I have heard learned counsel for the parties and perused the record. 14. The case of the petitioners is that there was no material available with the respondent-State on the basis of which, petitioners could be arrested. Learned counsel for the petitioners referred to order dt. 15th of July09, passed by the Division Bench, in which an observation was made that the members of the SIT have informed the Division Bench that an FIR has been registered against those suspended police officers alleging their involvement in destroying the evidence of the crime. It is stated that no such FIR has been registered against the petitioners till date. It is further contended that the DNA report received from CFSL, CBI, New Delhi, excludes the involvement of the petitioners in the commission of offence. It is stated that there is no reasonable ground to arrest the petitioners under Section 54 Cr.P.C., as the character of evidence collected during the investigation does not link the petitioners with the commission of crime. 15. On the other hand, Mr Qadri, learned Advocate General, appearing for the respondent State, submitted that the petitioners deliberately failed to register the FIR after the dead bodies of Neelofar Jan and Asiya Jan were recovered by them and this was with the intent and purpose of destroying the material evidence in the case. It was contended that after the recovery of dead bodies, petitioners did not conform to the relevant provisions of the Police Manual regarding the manner in which the investigation was to be conducted. It was stated that the investigation in the matter regarding fudging of the slides is under way and the role of the present petitioners is being investigated. 16. Mr. M.A. Qayoom, learned counsel, also addressed the arguments on behalf of Bar Association, Srinagar, as also the complainant party. Without going into the question as to whether the Bar Association has any locus to intervene, he was permitted to address the arguments with the purpose of assisting this court. He raised some preliminary issues regarding the maintainability of the present Revision Petition as also the desirability of this court to hear the bail application filed by the petitioners in the face of Division Bench being seized of the matter. He raised some preliminary issues regarding the maintainability of the present Revision Petition as also the desirability of this court to hear the bail application filed by the petitioners in the face of Division Bench being seized of the matter. It was further contended that the direction of the Apex Court was only for filing the bail application before the court of Principal Sessions Judge, Shopian, which remedy has been availed by the petitioners, and as such, the present revision petition as also the bail application is not maintainable. 17. The considerations which normally weigh with the court in the matter of granting bail in non bailable offences basically relate to the nature and seriousness of the offence; the character of the evidence; the circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of the witnesses being tampered with and the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case. 18. For analysing the present controversy in the light of aforementioned principles regarding granting or refusing of bail, it would be necessary to find out as to whether the character of evidence collected by the respondent State is sufficient to deny bail to the petitioners in the present case. 19. There is no dispute that the petitioners have been booked under Section 54 Cr.P.C., and the investigation regarding their complicity in the present crime is being done. The allegations against them as already stated herein supra relate to the conduct of the petitioners after the detection of two dead bodies of deceased women. An inference is being drawn by the respondents that the said conduct of the petitioners was not only contrary to the provisions of Criminal Procedure Code but also raises sufficient suspicion that they were hiding the real culprits. In order to appreciate this controversy, it is necessary to examine the role of present petitioners in the context of the allegations levelled against them. The contention raised by the learned Advocate General and Mr Qayoom is that the petitioners were required to register an FIR after the recovery of two dead bodies of deceased women and not to take recourse to the procedure laid down under Section 174 Cr.P.C. 20. The contention raised by the learned Advocate General and Mr Qayoom is that the petitioners were required to register an FIR after the recovery of two dead bodies of deceased women and not to take recourse to the procedure laid down under Section 174 Cr.P.C. 20. In order to appreciate the above contention, it is apt to examine the question as to whether in law, the Investigating Officer had the option to take recourse to Section 174 Cr.P.C., instead of registering the FIR on recovery of dead bodies. At this stage, it would be appropriate to notice the relevant provisions of Sections 154 and 174 of the Code of Criminal Procedure. These read as under:- "154. Information in cognizable cases: (1) Every information relating to the commission of a cognizable offence if given orally to an officer-in-charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced in writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Government may prescribe in this behalf. (2) A copy of the informant as recorded under sub section (1) shall be given forthwith, free of cost, to the informant against a proper receipt. (3) Any person aggrieved by a refusal on the part of an officer-in-charge of a police station to record the information referred to in sub section (1) may deliver personally or cause to be delivered or send by post the substance of such information, in writing to the Superintendent of Police concerned, who if satisfied that such information discloses the commission of cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer- in-charge of the police station in relation to that offence." "174. Police to enquire and report on suicide, etc. Police to enquire and report on suicide, etc. (1) The officer-in-charge of a police station or some other police officer specially empowered by the Government in that behalf, on receiving information that a person- (a) has committed suicide; or (b) has been killed by another, or by an animal, or by machinery or by an accident; or (c) has died under circumstances raising a reasonable suspicion that some other person has committed an offence, shall immediately give intimation thereof to the nearest Magistrate empowered to hold inquests, and, unless, otherwise directed by any rule prescribed by the Government, or by any general or special order of the District or Sub Divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, burises and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any)such marks appear to have been inflicted." 21. The import of Section 154, noticed above, is that if any information relating to commission of a cognizable offence is received, the officer-in-charge of the police station concerned shall reduce the same in writing and read over to the informant. Further, in case the said officer has reason to suspect regarding commission of a cognizable offence, he shall investigate the matter. In terms of Section 174, if an information is received by an officer-in-charge of a police station that someone has committed suicide or has been killed by another, or by an animal, or by machinery or by an accident or has died under circumstances raising a reasonable suspicion that some other person has committed the offence, he shall forthwith give intimation thereof to the nearest Magistrate empowered to hold inquests and unless otherwise directed, shall proceed to the place where the dead body of the deceased is and make an investigation and draw up a report of apparent cause of death. Section 174 is limited in scope and is confined to the ascertainment of the apparent cause of death. Section 174 is limited in scope and is confined to the ascertainment of the apparent cause of death. It is concerned with discovering whether in a given case the death was accidental, suicidal or homicidal or caused by an animal and in what manner or by what weapon or instrument the injuries on the body appear to have been inflicted. It is for this limited purpose that the persons acquainted with the facts of the case are summoned and examined. The question regarding the details as to how the deceased was assaulted or who assaulted him or her and who are the witnesses of the assault is alien to the procedure under Section 174. 22. The mandate of Section 154 is that at the stage of registration of a case on the basis of an information disclosing a cognizable offence, the police officer concerned is bound to register the FIR. The reliability, genuineness and credibility of the information are not the conditions precedent for registering a case under Section 154 of the Code of Criminal Procedure. Reliance in this regard can be placed on the judgment passed by the Apex Court in the case reported as AIR 2006 SC 3376, Lallan Chaudhary and ors v. State of Bihar and anr. What has been observed in para 10 of the judgment in the above case is being reproduced below:- "The mandate of Section 154 of the Code is that at the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence, the police officer concerned cannot embark upon an enquiry as to whether the information laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not relevant or credible. In other words, reliability, genuineness and credibility of the information are not the conditions precedent for registering a case under Section 154 of the Code." 23. In view of the above legal position, if an information regarding commission of a cognizable offence is given orally to an officer-in-charge of a police station, which is reduced in writing, the same is required to be signed by the person giving the said information and the officer-in-charge is bound to register the FIR. It is mandatory that there has to be an information relating to the commission of a cognizable offence. 24. It is mandatory that there has to be an information relating to the commission of a cognizable offence. 24. Undoubtedly, the power to investigate is wider as it leads to the collection of evidence and identification of the accused which power admittedly cannot be exercised while taking recourse to Section 174. However, the question that arises in the present case is as to under what circumstances the Investigating Officer can take recourse to Section 174 Cr.P.C. and whether the Investigating Officer in the present case, instead of registering the FIR, could invoke the provisions under the aforementioned Section also, in the facts and circumstances of the case. 25. It is not in dispute that on filing of a missing report by the husband of deceased Neelofar Jan, a search was initiated and on recovery of two dead bodies and conducting of their post mortem, proceedings under Section 174 were initiated. It be noted that the DIG, SKR, Anantnag, constituted a SIT under the supervision of petitioner No.1 for conducting inquest proceedings under Section 174. The said decision, as indicated above, was taken by the DIG concerned and not by the petitioners. So the option of conducting the investigation in the matter by registering the FIR was not left to the present petitioners. 26. As noticed above, a missing report was filed by the husband of deceased Neelofar Jan. The said missing report did not mention that any cognizable offence has been committed by someone. After the search was conducted and dead bodies were recovered, a reasonable suspicion was raised that some other person has committed the offence and it was under these circumstances, recourse was taken to hold inquest proceedings under Section 174 by the Investigating Officer and rightly so because the visual examination of the dead bodies could not reveal as to what was the cause of death which could only be determined after conducting the post mortem by the doctors concerned. 27. Section 174 of the Code of Criminal Procedure does not by itself define an offence nor does it provide for any punishment. It is purely procedural in nature. It imposes an obligation on the police to enquire and report in the cases of suicide and other related matters. It gets attracted when there is no complaint from any person in relation to a death which takes place within the jurisdiction of a police station. It is purely procedural in nature. It imposes an obligation on the police to enquire and report in the cases of suicide and other related matters. It gets attracted when there is no complaint from any person in relation to a death which takes place within the jurisdiction of a police station. With a view to see that unreported or uncomplained incidents of suicide or death do not remain unattended, the legislature has imposed an obligation on the police to undertake the investigation and to draw up a report regarding the apparent cause of a death. The aforementioned view of mine is fortified by a judgment of Andhra Pradesh High Court rendered in the case reported as 2005 Cri. L.J. 3373, Ch. Prasanth Kumar v. Superintendent of Police, Nellore and others. What has been observed in this regard, be noticed as under:- ".....Section 174 Cr.P.C. does not by itself define an offence nor does it provide for any punishment. It is purely procedural in nature. It imposes an obligation on the police, to enquire and report in cases of suicide and other related matters. Obviously, this gets attracted whenever there is no complaint from any person in relation to a death, which takes place within the limits of a police station. With a view to ensure that in an unreported or uncomplained of incident of suicide or death does not remain unattended to. The legislature had imposed an obligation on police to undertake investigation and to draw up a report, as to the apparent cause of death duly describing the nature of wounds, fracutures etc., found on the dead body......." 28. Therefore, keeping in view the above circumstances, the Investigating Agency, as observed above, thus, had the option to hold inquest proceedings under Section 174 to determine the cause of death. Thus, there is no dispute on this question that recourse to Section 174 was permissible. 29. The contention of Mr Qayoom that the only course available to the petitioners after recovery of dead bodies was to register the FIR, thus, as indicated above, is not correct. 30. The other circumstance against the petitioners is that after receiving the information that two dead bodies of deceased women have been recovered, they did not go on spot. 29. The contention of Mr Qayoom that the only course available to the petitioners after recovery of dead bodies was to register the FIR, thus, as indicated above, is not correct. 30. The other circumstance against the petitioners is that after receiving the information that two dead bodies of deceased women have been recovered, they did not go on spot. This fact is not disputed that the petitioners after receiving the said information did not visit the spot even though, the Incharge of the police station concerned had the first responsibility to do so and being the head of the district police, it was incumbent upon the petitioners to have visited the spot. This act of the petitioners can be viewed as an omission till their criminality regarding commission of offence is established from the material collected by the Investigating Agency. The investigation, however, is totally silent regarding the link of the petitioners with the commission of offence. Every shoddy investigation in such a matter does not necessarily mean the complicity of the Investigating Officer in the commission of crime unless the linkage with the criminal act is established. At this stage, it would be apt to notice that petitioner No.1 had a supervisory role to play. Admittedly, he has failed to perform the said role. The SHO concerned had a duty to preserve the spot and seize the clothes of deceased women immediately after the two dead bodies were recovered. This seems to have not been done at that point of time. The fact, however, still remains that as to whether this is sufficient to implicate the petitioners with the offence. The role of petitioner No.2 in the investigation has been minimal. He is said to have reached the spot only when the bodies were brought to the hospital. As a matter of fact, as is revealed from the case diaries, he was involved only in controlling the law and order situation. On 30th of May09, he had gone to Keygam in connection with investigation of a case and returned from there only at 10 am. 31. The other circumstance against the petitioners is that the clothes of the two deceased women were not seized after their dead bodies were recovered as a result of which the material evidence stood destroyed. On 30th of May09, he had gone to Keygam in connection with investigation of a case and returned from there only at 10 am. 31. The other circumstance against the petitioners is that the clothes of the two deceased women were not seized after their dead bodies were recovered as a result of which the material evidence stood destroyed. According to the respondents, the blood stains if any, could be an important piece of evidence which could link the culprit with the commission of offence but omission in this regard on the part of the petitioners in not seizing the clothes of the deceased women has led to destroying the said evidence. In this respect, it be noted that the clothes of two deceased ladies were seized on 1st of June09, as is evident from the case diaries. The blood stained undershirt (shameez) of deceased Asiya Jan was also recovered and forwarded to FSL, Srinagar, for DNA profiling and cross matching. It be further noted that both the spots from where the dead bodies were recovered, were thoroughly searched and examined with the assistance of FSL experts as is revealed from the Status report. During this search, one local made "Gunna" i.e., a jute fabric normally used to cover the horse back was seized. Some fibre looking material was also collected and sent to FSL, Srinagar, for its opinion. Some other items like male under-wear, bunch of hair and one right chappel which were also found from the place of occurrence were also seized and sent to the FSL. The report of the Investigating Agency does not indicate the nature of evidence which is sought to have been destroyed by not seizing the clothes of the deceased women. The investigation has progressed only in examining the witnesses under Section 161 Cr.P.C., who are stated to be living in the vicinity that too on the directions of the Division Bench. The statement of two material witnesses was also recorded before the learned Chief Judicial Magistrate concerned under Section 164-A. However, nothing has been shown by the respondents that any of the said witnesses has deposed against the petitioners. 32. The statement of two material witnesses was also recorded before the learned Chief Judicial Magistrate concerned under Section 164-A. However, nothing has been shown by the respondents that any of the said witnesses has deposed against the petitioners. 32. It be further seen that in pursuance to the directions passed by the Division Bench of this court, as noticed above, the blood samples of the petitioners were collected and were forwarded to CFSL, CBI, New Delhi for DNA profiling and cross matching with the DNA profiles of vaginal smears of the deceased women. The visceral tissue material of the two deceased women along with one blood stained undershirt(shameez), as indicated above, were also forwarded to the Director FSL for DNA profiling and cross matching. The report received in this regard shows that the DNA profiles of all the police officers are not consistent with the DNA profiles generated from the male fraction DNA of both the glass slides. The report further reveals that the DNA profiles generated from the Visceral materials of both the deceased ladies were not consistent with the DNA profiles generated from the female DNA fractions obtained from the vaginal smears of both the glass slides, which clearly reveals that the vaginal smears on the two glass slides had not originated from the bodies of the deceased women. The DNA profile prepared from visceral material tissues has been found to be in consistent with the DNA profile prepared from the blood stained undershirt (shameez) of deceased Asiya Jan. The report so received, thus, does not prove the complicity of the petitioners in the commission of offence for which the FIR stands registered. 33. In the affidavit filed by the Inspector General of Police, Kashmir Zone, who is supervising the Special Investigating Team, it is stated that the vaginal smeared slides have been fudged. However, despite the fact that the report from the concerned agency has been received on 5th of Aug09, no steps have been taken by the Investigating Agency to unfold this mystery of fudging. As a matter of fact, the investigation has been stalled at that stage for the reasons which only can be explained by the Investigating Agency. However, despite the fact that the report from the concerned agency has been received on 5th of Aug09, no steps have been taken by the Investigating Agency to unfold this mystery of fudging. As a matter of fact, the investigation has been stalled at that stage for the reasons which only can be explained by the Investigating Agency. Needless to state that the allegation of fudging does not involve the petitioners as on today nor there is any material available with the respondents on the basis of which the petitioners can be said to have committed the offence. 34. Petitioners were initially arrested under Section 54 Cr.P.C. It is revealed that they stand charged under Section 201 and 120-B RPC but they have not been charged under substantive offence under Sec.302/376 RPC for which FIR, as indicated above, stands registered. As indicated above, the Investigating Agency has examined the witnesses but none of them has deposed against the petitioners that they have committed the offence under Sec. 302/376 read with Sec. 120-B, RPC. 35. Before charging a person under Section 201 RPC, it is necessary to show that any evidence of the commission of that offence has been allowed to disappear with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false. In the case in hand, even if it is presumed that the destruction of evidence in the shape of not seizing the clothes of the deceased women on the day their dead bodies were recovered was to protect an unknown offender alleged to have committed the offence, even then, the said offence is bailable. It is yet to be proved by credible evidence which so far has not been collected by the Investigating Agency that the petitioners failure to seize the clothes of the deceased women was done with some criminal intention. 36. The allegation against the petitioners is that they have failed to seize the clothes of deceased women, as a result of which, important clues which could have been collected to reach to the conclusion as to who has committed the crime were lost. 36. The allegation against the petitioners is that they have failed to seize the clothes of deceased women, as a result of which, important clues which could have been collected to reach to the conclusion as to who has committed the crime were lost. Such an allegation against the petitioners, even though, cannot be brushed aside, but at the same time, such an allegation cannot be taken as a sufficient ground to come to a conclusion that the petitioners, in any manner, are connected with the commission of crime for which they can be kept behind the bars. It is also not possible for this court, under such circumstances, to reach to a conclusion that the evidence against the petitioners is such as would lead to their conviction. The case in hand is based only on circumstantial evidence and in such a case not only culpability or mens rea of the accused should be prima facie established, the court must also consider the question as to whether the circumstantial evidence is such in which the link in the chain is complete. 37. It be further noticed that Section 497 of the Cr.P.C., contemplates that when a person accused of or suspected of commission of any non bailable offence is arrested, he may be released on bail but in case, there appears a reasonable ground for believing that he is guilty of an offence punishable with death or imprisonment for life, he shall not be so released. The discretion to grant bail given to this court under Section 498 of the Cr.P.C., is not fettered in terms by the restrictions contained in Section 497 but on principle, these govern the exercise of the discretion by it under Section 498. If there are reasonable grounds for believing that a person is guilty of an offence punishable with death or imprisonment for life, this Court or the court of Session will not grant bail to such a person. Whether there are reasonable grounds to believe that a person is guilty of an offence depends upon the evidence which is used against him. Whether there are reasonable grounds to believe that a person is guilty of an offence depends upon the evidence which is used against him. In order to come to the conclusion that a person is guilty, the court must consider the nature and the character of the evidence against him and, in case, on consideration of such evidence, the court prima-facie comes to the conclusion that the evidence against the person is not such that he has committed the offence, then, in the normal course, the said person is entitled to bail. As discussed here-in-above, the case of the respondent State relates only to the conduct of the petitioners as police officers regarding the manner in which they handled the investigation and allowed destruction of the evidence after the dead bodies of deceased women were recovered. The only charge against the petitioners is that they have destroyed the evidence, which is a bailable offence. 38. The theory of conspiracy raised by the respondents has no substance on the basis of the material collected by them. The essential ingredient of the conspiracy is that a person must have the knowledge about the commission of an offence and it has to be established that there was an agreement between the persons who are alleged to have conspired and this agreement was to do an illegal act. As such, the essence of criminal conspiracy is an agreement to do an illegal act and it has to be proved by direct or circumstantial evidence that one or more persons have conspired together to commit an offence. In the present case, however, there is nothing to suggest that the petitioners had the knowledge about the commission of offence or they had conspired with some one in any manner to commit the crime. Even the complainant in his missing report which was lodged by him in the police station concerned, has not stated that the petitioners had the knowledge of commission of the said offence. 39. As stated here-in-above, the only circumstance sought to be invoked against the petitioners is that they have failed to perform their duty assigned to them under law. However, it would be apt to mention that any omission or commission or for that matter, negligence or dereliction of duty on the part of petitioners may not lead to a possibility that they have culpability in the matter. However, it would be apt to mention that any omission or commission or for that matter, negligence or dereliction of duty on the part of petitioners may not lead to a possibility that they have culpability in the matter. The courts in such a situation as is in the present case, have to keep in mind the broad principles of law that some acts of omission and commission on the part of a public servant may attract some disciplinary proceedings against him but may not attract a penal provision. Reliance in this regard can be placed on a judgment of the Apex Court reported as (2005)5 SCC 294, Ranjit Singh Brahmajeetsing Sharma v. State of Maharashtra and another. What has been observed in this regard in para 32 of the judgment, may be noticed as under: - ".............. The court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea. Every little omission or commission, negligence or dereliction may not lead to a possibility of his having culpability in the matter which is not the sine qua non for attracting the provisions of MCOCA. A person in a given situation may not do that which he ought to have done. The court may in a situation of this nature keep in mind the broad principles of law that some acts of omission and commission on the part of a public servant may attract disciplinary proceedings but may not attract a penal provision." 40. Coming to the preliminary issues raised by the learned Advocate General and Mr Qayoom, regarding the maintainability of the Revision Petition filed by the petitioners, it be seen that in the said petition, two reliefs have been sought by the petitioners; one seeking the quashment of order impugned passed by the learned Sessions Judge, Shopian, exercising the revisional jurisdiction and the other is for grant of bail under Section 498 Cr.P.C. It will not be important for me to address on the question regarding the maintainability of the Revision petition as the issue is no longer res-integra that this Court while enjoying concurrent jurisdiction under Section 498 with the Sessions court, can entertain a similar application under the said Section for the same offence. I am fortified in this view by a judgment of the Apex Court in the case reported as AIR 1978 SC 179, as also the judgment passed by the Bombay High Court reported as Crimes Vol.3 1987 page 363, which followed the ratio of judgment passed by the Apex Court in the aforementioned case. What was observed by the Apex Court in the case, referred to above, may be noticed as under:- ".....................There is no provision in the new Code excluding the jurisdiction of the High Court in dealing with an application under S.439(2) Cr.P.C. to cancel bail after the Sessions Judge had been moved and an order had been passed by him granting bail. The High Court undoubtedly has jurisdiction to entertain the application under S.439(2) Cr.P.C. for cancellation of bail notwithstanding that the Sessions Judge had earlier admitted the appellants to bail. There is, therefore, no force in the submission of Mr Mukherjee to the contrary." 41. Regarding the other contention raised by Mr Qayoom, that the Apex Court while disposing of the Special Leave Petition filed by the petitioners had directed them to file the bail application before the learned Principal Sessions Judge, Shopian, had exercised its power under Article 142, restricting the petitioners to approach the aforementioned court alone and not this Court, it be seen that the power under Article 142 cannot be used to over-ride the substantive law as has been held by the Apex Court in the case reported as (1998) 4 SCC 409, Supreme Court Bar Association v. Union of India. In this regard, what has been observed by the Apex court is being reproduced below:- "However, the powers conferred on the Court by Article 142 being curative in nature cannot be construed as powers which authorise the court to ignore the substantive rights of a litigant while dealing with a cause pending before it. This power cannot be used to `supplant substantive law applicable to the case or cause under consideration of the Court. Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly.................." 42. Similar view was reiterated in the case reported as (2001) SCC 278, M.S. Ahlawat v. State of Haryana and another. Similar view was reiterated in the case reported as (2001) SCC 278, M.S. Ahlawat v. State of Haryana and another. In view of the above law laid down by the Apex Court, it can safely be said that the petitioners could invoke the jurisdiction of this court under Section 498 after rejection of their bail application by the learned Principal Sessions Judge, Shopian. The argument, thus, put forth by Mr Qayoom, that the petitioners were estopped from moving this court after rejection of their bail application by the Principal Sessions Judge, Shopian, as the Apex Court had directed them to file the bail applications before the aforementioned Court, is not sustainable. 43. Mr. Qayoom, further states that since a Division Bench of this court is already seized of the matter, therefore, it will be appropriate to refer the matter to the said Bench. In this regard, it be seen that there is no dispute that the Division Bench is monitoring the investigation of the case and has issued certain directions which stand already noticed above. One such direction issued by the Division Bench is that in case any bail application is moved by any of the accused persons, the same shall not be entertained by any other court except by the Division Bench. As already stated here-in-above, the direction passed by the Division Bench to that extent has been set aside by the Apex Court and the petitioners were allowed to move the appropriate court i.e. Principal Sessions Judge, Shopian, for grant of bail. It is on the rejection of their bail application by the learned Principal Sessions Judge, Shopian, that the matter is before me and as already observed above, the petitioners, after the rejection of their bail application by the above court had the remedy available to them which has been availed by them by filing the present revision petition along with the bail application. Even otherwise, no such plea was raised before the learned Principal Sessions Judge, Shopian, and no such plea was put forth by the respondent-State or by the Bar Association, Srinagar, even before the Apex Court that a restriction may be imposed on the petitioners for moving the concerned Court of Sessions alone. Under these circumstances, the plea raised by Mr Qayoom regarding referring the matter to the Division Bench, being already seized of the matter, cannot be accepted. 44. Under these circumstances, the plea raised by Mr Qayoom regarding referring the matter to the Division Bench, being already seized of the matter, cannot be accepted. 44. For the reasons mentioned above, the bail application is allowed. Order impugned dated 6th of Aug09, passed by the learned Principal Sessions Judge, Shopian, is set aside. The petitioners are directed to be released on bail subject to their furnishing of bail bonds to the tune of Rs. 50,000/- with one surety each in the like amount, to the satisfaction of Registrar (Judl.) of this Court. This order, however, shall be subject to the following conditions:- 1/ That the petitioners will not enter the jurisdiction of districts Pulwama and Shopian, unless they are required by the Investigating Agency to appear before it during the course of investigation; 2/ That the petitioners will not leave the State of Jammu and Kashmir without prior permission from the court of Principal Sessions Judge, Shopian, and will make themselves available for investigation as and when required; 3/ That the petitioners will not tamper with the evidence in any manner. In case, any complaint in this regard is received, the Investigating Agency will be within its rights to approach the Principal Sessions Judge, Shopian, for seeking appropriate orders. 45. It is, however, made clear that if at a later stage, any material is collected by the Investigating Agency which shows the involvement of the petitioners in the commission of offence, the Investigating Agency in that eventuality, would be well within its rights to move the Principal Sessions Judge, Shopian, for appropriate orders against the petitioners. 46. Before parting with this order, it be noted that the Investigating Agency has confined itself only to find out the involvement of present petitioners in the said case. There are other leads in the investigation which are also required to be pursued notable among them are: a/ as to who has committed the fudging of slides; b/ why the FSL report prepared on 1st of June09 was not sent to the Investigating Agency till 6th of June09; and c/ who were the persons not interested in allowing the first team of doctors to conduct the post mortem of bodies of two deceased women. 47. 47. The death of two ladies namely Neelofar Jan and Asiya Jan, has resulted in public anger and rightly so because there is no break-through in solving the mystery as to who has killed the said ladies. 48. I am conscious of the fact that the Division Bench of this Court is already monitoring the investigation, as such, no direction in this respect can be given by me. However, it is expected that the Investigating Agency shall perform its duty in accordance with the law. 49. Any observation made in this order, however, will not influence the course of investigation or any proceedings which may be taken against any person in this behalf. 50. With the above observations, the Revision Petition as also the bail application shall stand disposed of accordingly.