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2010 DIGILAW 265 (JK)

Mohd. Lateef Deedar v. State

2010-05-07

MUZAFFAR HUSSAIN ATTAR

body2010
1. An invigorated criminal justice system would provide guarantee to a crime free society which, in turn, will reinforce and refurbish economic, cultural and religious image thereof. A strong Criminal justice system forms the bedrock of an orderly society. All other branches of law and spheres of human activity are correlated to a crime free society. For attaining the goal of crime free society, criminal justice system has to be given precedence over all other branches of law. 2. The petitioner, accused in case F.I.R No. 130/2008 Police Station Kupwara registered under sections 364, 302, 34, 420B RPC, was tendered pardon by the learned Chief Judicial Magistrate, Handwara vide his order dated 28-11-2008 after entering into satisfaction that the circumstances of the case warrant so. The petitioner was tendered pardon on the condition that he will make a full and true disclosure of the circumstances within his knowledge relating to the offences and of every other person concerned with the commission thereof. The petitioner accepted the conditional pardon. Statement of the petitioner was recorded u/s 164 Cr.PC by the learned Judicial Magistrate. Prior to this, petitioner's statement was also recorded by the police concerned during the investigation of the case. The report u/s 173 Cr.PC was filed before the learned Judicial Magistrate, the offences being triable by the learned Sessions Judge, the case was accordingly committed to the Court of Principal Sessions Judge Kupwara. The accused were charge sheeted and prosecution was directed to lead evidence. Petitioner's statement was recorded by the learned trial Judge on 16-06-2009 and 17-06-2009. After the statement of the petitioner was recorded, an application was filed on 10-07-2009 before the learned trial Judge praying therein that in view of the fact that pardon has been tendered to the petitioner and that he satisfied the terms and conditions of the pardon by making full and complete disclosure of the facts of the case in his statement, so he shall be ordered to be admitted to bail. 3. Objections were filed by the learned Public Prosecutor, same are reproduced hereunder : "..................... ....The objections are submitted as under : 1/ That the above titled case is pending disposal before this Hon'ble court and is at the stage of leading evidence. 3. Objections were filed by the learned Public Prosecutor, same are reproduced hereunder : "..................... ....The objections are submitted as under : 1/ That the above titled case is pending disposal before this Hon'ble court and is at the stage of leading evidence. In the case initially there were three persons including above named (approver) and during the course of investigation of the case, the investigating agency has made the said Mohd. Latiff Deedar as accomplice in the case, who was thereafter declared approver by the orders of C.J.M. Handwara. 2/ That the statement of the approver was recorded by this Hon'ble during the course of trial of the case and from the date of arrest till today, the approver is in Judicial custody at central Jail Srinagar. 3/ That I have perused the statement of the approver recorded during the course of trial of the case and other material placed on the record. That the statement recorded u/s 164 CRPC and statement recorded before C.J.M Handwara, and also other evidence placed on the record on the file. I do not find any contradiction in the statement of the approver recorded during the course of trial of the case viz-a- viz to his other statements recorded by him before different Magistrates. 4/ That the statement does not require the presence of the approver in the case for the reasons that he has completed his role. In the premises it is therefore, prayed that necessary orders in accordance with law may be passed in the interests of justice." 4. The learned trial Judge, vide order dated 12-11-2009, rejected the bail application on the ground that it has no power to admit the approver to bail as there is a statutory inhibition put on its power in terms of sub section 3 of section 337 Cr.PC , SVT 1989 (for short SVT 1989). It is this order which has been called in question in this petition and it is prayed that the order of the learned Sessions Judge be quashed and petitioner be admitted to bail in the aforementioned F.I.R. 5. Heard learned counsel for the parties. Considered the matter. 6. It is this order which has been called in question in this petition and it is prayed that the order of the learned Sessions Judge be quashed and petitioner be admitted to bail in the aforementioned F.I.R. 5. Heard learned counsel for the parties. Considered the matter. 6. learned counsel for the petitioner referred to and relied upon the judgement in case Mohammad Shafi v. State and others, Bail application No. 10/1981 decided on 31-07-1981 as also a full bench judgement of the Delhi High Court reported in 1985 Cri. L.J. 1534 and submitted that in the facts and circumstances of this case, the petitioner deserves to be admitted to bail in exercise of inherent powers by this Court. 7. Learned counsel for the respondents submitted that in view of the language used in sub section 3 of section 337 SVT. 1989, the person to whom pardon is tendered is to be detained in custody until termination of the trial. Sub section 1&3 of section 337 Cr.PC SVT 1989 is reproduced hereunder : "337. 7. Learned counsel for the respondents submitted that in view of the language used in sub section 3 of section 337 SVT. 1989, the person to whom pardon is tendered is to be detained in custody until termination of the trial. Sub section 1&3 of section 337 Cr.PC SVT 1989 is reproduced hereunder : "337. Tender of pardon to accomplice (1) In the case of any offence triable exclusively by the High Court or Court of Sessions, or any offence punishable with imprisonment [which may extend to seven years] or any offence under any of the following sections of the Ranbir Penal Code, namely, sections [161,165], [165-A], 216-A, 369, 401,435 and 411-A. [a Chief Judicial Magistrate, a Sub-Divisional Magistrate or any Judicial Magistrate of the first class may, at any stage of the investigation or enquiry into, or the trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof: Provided that, where the offence is under inquiry or trial, no Magistrate of the first class other than the [Chief Judicial Magistrate] shall exercise the power hereby conferred unless he is the Magistrate making the inquiry or holding the trial, and, where the offence is under investigation, no such Magistrate shall exercise the said power unless he is a Magistrate having jurisdiction in a place where the offence might be inquired into or tried and the sanction of the [Chief Judicial Magistrate] has been obtained to the exercise thereof. (3) Such person, unless he is already on bail, shall be detained in custody until the termination of the trial. " 8. In the fact situation of this case as also admitted by the learned Public Prosecutor in his objections filed before the learned Principal Sessions Judge Kupwara, the petitioner has complied with the terms and conditions of the pardon tendered to him by the learned Chief Judicial Magistrate, in as much as, he has corroborated the statement which he made before the learned Judicial Magistrate, during the trial of the case. For the prosecution, the petitioner has, in all fours, complied with the terms and conditions of the order of pardon, thus can it be said that in terms of sub section 3 of section 337 SVT 1989, the petitioner, despite having fulfilled his commitment and promise, has to remain in custody until termination of the trial. 9. Section 337 SVT 1989 appears to be an exception to the general principles of criminal law. This provision has been incorporated in the statute book to ensure that the perpetrators of crime are punished and do not go scot free. If a person who has committed crime volunteers to make a clean breast of all the true facts about the circumstances relating to the offence and all other persons involved in the commission of the crime, the State, by enacting aforementioned provision, has extended promise to such person that after fulfilling the terms and conditions therein, he will get benefit of the pardon which has been tendered to him, meaning thereby that he would not be punished, but would be set at liberty. The intention of the legislators in enacting such a provision has to be seen in the backdrop of securing a crime free society. The person who volunteers to make full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and other persons connected therewith, when satisfies the terms and conditions of the pardon tendered to him by making a statement during the trial of the case, which pardon entitles him to be set at liberty, then what is the purpose of keeping such a person in detention thereafter. Everyone is bound by statutory promise. Article 21 of the Constitution of India, reproduced hereinafter, provides that no person shall be deprived of his life and personal liberty except in accordance with the procedure established by law : "21. Protection of life and personal liberty:- No person shall be deprived of his life or personal liberty except according to procedure established by law. 10. The procedure established by law has to pass the test of reasonableness and has not to be a procedure which would be said to be arbitrary, unreasonable and irrational. Protection of life and personal liberty:- No person shall be deprived of his life or personal liberty except according to procedure established by law. 10. The procedure established by law has to pass the test of reasonableness and has not to be a procedure which would be said to be arbitrary, unreasonable and irrational. Right to life and personal liberty has been delineated by a Division Bench of this Court in case titled J&K High Court Bar Association v. State and others reported in JK Judgements vol. 2010 (1) JKJ HC-780 : 2010 SLJ 336 (DB). Relevant paras of the judgement may be noticed : "15. In a democratic State, governed by rule of law and in view of the fact that a human being is catapulted to focused position in this universe, he cannot be deprived of his life and personal liberty. In a civilized society governed by rule of law, in the overall interest of society, an individual cannot be deprived of his life and personal liberty save in accordance with the procedure established by law. In absence of Article 21 of the Constitution, the State governed by rule of law, would be powerless to deprive an individual of his life and personal liberty. Article 21 of the Constitution confers power upon State to deprive an individual of his life and personal liberty, but this power is to be exercised in accordance with the law made by the State. The life and personal liberty of an individual is of paramount importance in human existence. But for a bigger cause of the society a person can be deprived of his life and personal liberty, however, in accordance with procedure established by law. 16. Deprivation of life and personal liberty of an individual by the authority of law, would not mean that such an individual is denuded of his basic human rights. It is not only a detenu and/or under-trial but even a convict is entitled to certain basic human rights and it is State governed by rule of law which is under an obligation to respect those human rights. 17. Article 21 of the Constitution has the potential of conferring a drastic power on the State. But before depriving an individual of his life and personal liberty the State has to follow the mandate of law in achieving such goal. 17. Article 21 of the Constitution has the potential of conferring a drastic power on the State. But before depriving an individual of his life and personal liberty the State has to follow the mandate of law in achieving such goal. The Constitution given by the people of this country to themselves is the Supreme Law of Land and is the repository of basic rights of the individual. The action of the individual, which necessitates for depriving him of his life and/or personal liberty is to be adjudged in accordance with the procedure established by law. The Article 21 on the one hand confers power on the State to deprive an individual of his life and/or personal liberty, on the other hand confers an indefensible right on the individual to live his life and enjoy the freedom, which came into existence with his very birth. A person who is sought to be deprived of his life and/or personal liberty, cannot be kept in confines of the jails, for arriving at a conclusion, for unnecessarily long period." 11. Sub section 3 of section 337 SVT 1989 cannot be interpreted in a manner which would defeat the mandate contained in article 21 of the Constitution of India. What purpose is to be achieved by keeping an approver in custody during the trial after he satisfactorily complies with the terms and conditions of the order of pardon. The custody of an approver is co-terminus with fulfillment of terms and conditions of the order of tender of pardon. The moment he complies with the terms and conditions of tender of pardon, he gets right to be released. Keeping such a person detained until termination of the trial would not only be violating the constitutional guarantees as contained in article 21 of the Constitution of India but would also tantamount to inflicting punishment on him. 12. Apparently sub section 3 of section 337 SVT 1989 throws up an anomalous situation, in as much as a person who is already on bail, is not ordered to be detained until termination of trial after he fulfills the terms and conditions of the tender of pardon. Whereas a person who is in custody has to remain detained until termination of the trial. Whereas a person who is in custody has to remain detained until termination of the trial. Assume a situation that for some valid reasons a person who is tendered pardon in terms of section 337 SVT 1989 and is involved in a non bailable offence on some valid legal ground is admitted to bail and after complying with the terms and conditions of the tender of pardon, he cannot be detained in custody until termination of the trial. Whereas another person similarly circumstanced has to suffer the consequences of detention until termination of trial. Assume a situation that four persons are alleged to have committed crime. One amongst them is admitted to bail even for a brief period on any ground available to him in law. While on bail the said accused and one other accused apply for tender of pardon and same is granted to them. Both tender their statement during trial. The one on bail will continue to remain at large and other has to remain in custody until termination of trial. It cannot be attributed to the legislators that by enacting the provision of sub section 3 of section 337 SVT 1989, they would create anomalous situation by providing that two persons similarly situated will be treated differently, in as much as, if one is admitted to bail, he will continue to be on bail whereas the other who is in custody will continue to remain so until termination of the trial. If such intention is attributed to the legislators, then the provision would fall foul of the constitutional provision as contained in article 14 of the Constitution of India which provides that no person can be denied equality before the law or the equal protection of the laws within the territory of India. Such provision would also be violative of the constitutional mandate contained in article 21 of the Constitution, in as much as, despite earning pardon in terms of statute, the person will continue to suffer incarceration. 13. The Courts have to shape up rights of the people by chiseling statute in a manner to make it in tune with the object sought to be achieved. The provision of law is to be read and interpreted in a manner which protects and preserves its constitutional validity. 13. The Courts have to shape up rights of the people by chiseling statute in a manner to make it in tune with the object sought to be achieved. The provision of law is to be read and interpreted in a manner which protects and preserves its constitutional validity. Sub section 3 of section 337 SVT 1989 is to be interpreted in a manner so as to harmonize the intention of the legislators with the object sought to be achieved. It appears that the purpose of enacting sub section 3 of section 337 SVT 1989 is to dissuade the person, to whom pardon has been tendered to wriggle out of his promise of making full and true disclosure of the whole circumstances relating to the offence and to every other person involved. And in case the terms and conditions of pardon are observed in breach, then such person attains the status of accused. The moment the said person complies with the mandate of sub section 1&2 of section 337, the rigour of sub section 3 of section 337 is not attracted. The rigour of the said sub section would apply to a person who, even after tender of pardon, breaches the promise by not making full and true disclosure of the circumstances within his knowledge relating to the offence and other persons connected therewith. Such person would continue to remain as accused. If an approver does not comply with the conditions of tender of pardon, as already stated, he assumes the status of accused and will get the benefit of provisions of sections 497/498 Cr.PC whereas an approver, even after satisfying the conditions of tender of pardon, will remain in custody until termination of trial. Such an irrational, arbitrary and unreasonable situation cannot be created by a statute or any provision thereof. If such a situation is created, then the provision of law becomes an unconstitutional. 14. The expression `unless he is already on bail' occurring in sub section 3 of section 337 SVT 1989, apparently, makes it writ large on the face of the statute that the trial Court, in the facts and circumstances of the case, has the power to grant bail to an accused person under sections 497/498 Cr.PC. 14. The expression `unless he is already on bail' occurring in sub section 3 of section 337 SVT 1989, apparently, makes it writ large on the face of the statute that the trial Court, in the facts and circumstances of the case, has the power to grant bail to an accused person under sections 497/498 Cr.PC. It appears the said power of admitting the accused person to bail is, thus, retained by sub section 3 of section 337 SVT 1989 and has not been taken away. Otherwise also sections 497/498 Cr.PC confer discretionary power on the Court to admit an accused to bail in accordance with the settled principles and norms of law. If the Court of competent jurisdiction is having jurisdiction to admit and enlarge an accused person to bail, the said power of admitting an approver to bail, if denied to the trial Court/Court of competent jurisdiction, will inflict an irreparable damage on the rights of the person who turns approver and is granted pardon and satisfies the terms and conditions of the tender of pardon. Such a person would land in worst position vis-a-vis the perpetrators of crime. Assume a situation that trial Court admits the accused person to bail on some valid legal grounds, which would include lack of material supporting the prosecution case, on the interpretation of sub section 3 of section 337 SVT 1989, as put by learned counsel for the respondents, the approver who has been tendered pardon has to remain in custody until termination of trial. This will not only create an absurd situation but will be against the basic fundamentals of the Constitution. The provision of law cannot be given such an interpretation which will create an absurd situation and will render it unjust as well. The power to grant or refuse bail is a power conferred by statute on a Court of law. This power can not be taken away by any judicial interpretation as any such interpretation will tantamount to legislating the law which does not fall within the domain of Courts. The expression `unless he is already on bail' occurring in sub section 3 of section 337 SVT 1989 preserves the power of grant of bail, which power is correlated to the right to personal liberty guaranteed under article 21 of the Constitution of India. The expression `unless he is already on bail' occurring in sub section 3 of section 337 SVT 1989 preserves the power of grant of bail, which power is correlated to the right to personal liberty guaranteed under article 21 of the Constitution of India. Sub section 3 of section 337 SVT 1989, thus, may not restrict the jurisdiction of the trial Court to consider the grant of bail to an approver in terms of sections 497/498 of SVT 1989. Otherwise the sub section 3 of section 337 SVT 1989 would fall foul of articles 14 and 21 of the Constitution of India. This issue of competence of the trial Court to grant bail to an approver has not been raised and debated, as such is left open to be decided in an appropriate case. 15. The approver who is tendered pardon, on satisfaction of conditions contained therein, ceases to be an accused and has to get benefit of pardon, which would mean that he is not to be punished. In such eventuality, he may not even be required to be asked to furnish bail and surety bonds. He can be released on furnishing Undertaking/Personal bond to faithfully continue to abide by the terms and conditions of tender of pardon. The Hon'ble Supreme Court in case titled State (Delhi Administration) - Appellant v. Jagjit Singh - Respondent, reported in AIR 1989 SC 598 , has held that once an accused is granted pardon under Code of Criminal Procedure (Cr.PC), he ceases to be an accused and becomes witness for the prosecution. It is further ruled that so long as the prosecution does not certify that he has failed to comply with the conditions of grant of pardon, he continues to be a witness. 16. In view of the discussion made hereinabove, can it still be said that an approver, who satisfies the terms and conditions of the tender of pardon, cannot be ordered to be released from prison. In order to meet such like eventualities, the legislators have enacted section 561-A, Cr.PC, SVT 1989 which provides `Saving of inherent power of High Court'. Section 337 SVT 1989 falls under chapter XXIV and section 561-A falls under chapter XLVI. In order to meet such like eventualities, the legislators have enacted section 561-A, Cr.PC, SVT 1989 which provides `Saving of inherent power of High Court'. Section 337 SVT 1989 falls under chapter XXIV and section 561-A falls under chapter XLVI. Section 561-A is reproduced hereunder : "561-A. Saving of inherent power of High Court Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." 17. The provision supra is couched in a language which confers powers which cannot be limited or affected by other provisions of the Cr.PC. The section provides that nothing in the Court shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Cr.PC or to prevent abuse of process of any Court or otherwise to secure the ends of justice. On the grounds and reasons stated in this judgement, this Court is clothed with the power to admit the petitioner on bail to secure the ends of justice. 18. For the discussions made in this judgement, denying this relief to the petitioner would be unjust. The constitutional Courts like the High Courts have inherent jurisdiction to pass orders and issue directions exdebito justitiae. In a situation, as is presented in this case, the powers of the constitutional Court cannot be shackled hand and foot. The constitutional Court, by its very existence, is possessed of inherent powers to issue orders and directions to remove the injustices wherever it is found. 19. It is, accordingly ordered by the Court, in exercise of its inherent powers, which it is possessed of and which is recognized by the statute under section 561-A, Cr.PC, that the petitioner be released on furnishing bail bond and surety bond in an amount of Rs.20,000/- (Rupees Twenty thousand) to the satisfaction of the learned Principal Sessions Judge, Kupwara. The petitioner shall also undertake that he will continue to abide by the terms and conditions of the tender of pardon. 20. This case was heard and reserved for orders on 01-05-2010. The draft judgement was prepared. Mr. The petitioner shall also undertake that he will continue to abide by the terms and conditions of the tender of pardon. 20. This case was heard and reserved for orders on 01-05-2010. The draft judgement was prepared. Mr. N.H.Shah, Dy.AG, learned counsel for the respondents, sought permission to cite one judgement of the Hon'ble Supreme Court and produced the same in the Chamber. It was the duty of the learned counsel to cite the said judgement while the case was being argued in the Court so as to enable the learned counsel for the other side to meet the same. However, in the interest of justice, the judgement cited, was deemed to be considered. The said judgement has been pronounced by the Hon'ble Supreme Court in case titled Suresh Chandra Bahri, Gurbachan Singh & Raj Pal Sharma, Appellants v. State of Bihar, Respondent, reported in AIR 1994 SC 2420 . The facts of the case, as narrated in the said judgement, are that a conspiracy was hatched by the husband of the deceased and father of two minor children along with other accused persons to murder the wife of the appellant No. 1 and his two minor children. The investigation in the case was initially conducted by the local police, but was, subsequently, transferred to the Central Bureau of Investigation (CBI). During the investigation of the case, one of the accused turned approver. His statement was recorded, u/s 164 Cr.PC, by the learned Magistrate and pardon was tendered to him. The said accused accepted the pardon. The approver's statement was recorded during the trial of the case and thereafter, he was ordered to be released on bail by the High Court. Before the Hon'ble Supreme Court, one of the contention was raised by the counsel for the accused-appellants, who were convicted and sentenced, that the trial in the case stands vitiated for the reason of release of approver on bail in the face of statutory embargo as contained in section 306(4) of Central Code, (Section 337) (3) of the State Code, which provide that until termination of the trial, the approver shall be detained in custody. It is in this factual backdrop, that the Hon'ble Supreme Court observed that the release of the approver on bail, though illegal, would not, however, affect the trial in the case and the trial would not, thus, be vitiated in law. 21. It is in this factual backdrop, that the Hon'ble Supreme Court observed that the release of the approver on bail, though illegal, would not, however, affect the trial in the case and the trial would not, thus, be vitiated in law. 21. The question, thus, crops up as to whether the observation made by the Hon'ble Supreme Court in the aforementioned case, in a particular factual background, can be said to constitute a binding precedent in law so as to prevent the High Court in passing appropriate orders even for release of an approver on bail under its inherent powers as recognized and preserved by section 561-A Cr.PC. The Hon'ble Supreme Court in the aforesaid case was not considering the issue of inherent powers of the High Court to pass a bail order in favour of the approver. Settled position of law is that a judgement is not to be read as a statute and will not constitute a binding precedent when facts in the cases are, materially, different. Unless the issues are raised and debated in respect of a particular provision/statute and the same are answered by referring to a particular statute and reasons are recorded in the answer, the decision will not constitute a binding precedent, in law. As already stated, the issue before the apex Court in the aforementioned case was not the inherent power of the High Court to grant bail to an approver. The issue was as to whether the trial would vitiate when approver has been granted bail as it was argued that section 306(4) of Central Code, (section 337)(3) of State Code did not authorize such a release. In such circumstance even, can a judgement constitute binding precedent in the fact situation of this case, is to be discerned from the Judgements of the Hon'ble Supreme Court itself. The Hon'ble Supreme Court in case Bhavnagar University-appellant v. Palitana Suger Mill (P) Ltd. & others - respondents, reported in (2003)2 SCC 111 , ruled that a decision is an authority for which it is decided and not what can, logically, be deduced therefrom. It is further ruled that it is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. It is further ruled that it is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. The Hon'ble Supreme Court in case Mittal Engineering Works (P) Ltd. - appellant v. Collector of Central Excise, Meerut - respondent, reported in (1997) 1 SCC 203 , has ruled that "a decision cannot be relied upon in support of a proposition that it did not decide." This is what has been stated in para 8 of the said judgement. The judgement constitutes a binding precedent when it decides a question of law raised before it. A judgement of the Court has to be read in the context of question which arose for consideration in the case in which the judgement was delivered. 22. In view of the law laid by the Hon'ble Supreme Court, the judgement referred to by Mr. Shah, learned counsel for the respondents does not decide the point of law that the High Court cannot exercise inherent powers for ordering release of approver on bail. The said judgement will not, thus, constitute a binding precedent. 23. Disposed of along with Cr.MPs.