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2010 DIGILAW 318 (JK)

Syed Shabir Ahamad v. State

2010-05-28

Hasnain Massodi

body2010
1. The petitioners/accused were arrested in connection with case FIR No. 43 of 2007 Police Station Kokernag on 5th May 2007. The petitioners/accused approached Court of JMIC (Sub Judge) Vailoo with an application under Section 497 Cr.P.C. for grant of bail. The court on 10.5.2007 granted interim bail to the petitioners/accused subject to the conditions laid down in order and thereafter on 13th May 2007 made the interim bail order dated 10.5.2007 absolute. The investigation was concluded as proved against the petitioners/accused and the charge sheet presented before the Court having jurisdiction over the matter. The case was thereafter committed to the Court of Sessions where trial is at present going on. One of the prosecution witnesses namely Mst. Shameema stepped in the witness box on 25th March 2010 and testified to the events that allegedly took place at the time of occurrence. The witness narrated how the petitioners/accused at the time of occurrence forced their way into her house and made indecent assault on her and burnt her body and clipped her hair. Learned Trial Judge on 25th March 2010, after part statement of the PW-Mst. Shameema was recorded, cancelled the bail of the petitioners/accused. The reason detailed in the interim order dated 25.3.2010, to order cancellation of bail was the deposition made by PW- Mst. Shameema and further that most of the victims of the alleged occurrence and the witnesses to the occurrence were women . The Trial Court even directed that the petitioners/accused be kept in custody in Central Jail Srinagar, till the trial was concluded. 2. The petitioners/accused through medium of instant petition seeks to invoke inherit powers of Court under Section 587 Cr. P.C. for quashment of the order dated 25.3.2010. The grounds urged in the petition are that Learned Trial Judge while making the order dated 25.3.2010 and directing cancellation of the bail granted to the petitioners/ accused did not adhere to the settled legal procedure. It is urged that in first place the bail once granted may be cancelled only in rare cases and for compelling reason, and that even where such reasons exist the Trial Court before ordering cancellation of the bail is duty bound to afford the accused an opportunity of being heard. Learned Trial Judge. It is urged that in first place the bail once granted may be cancelled only in rare cases and for compelling reason, and that even where such reasons exist the Trial Court before ordering cancellation of the bail is duty bound to afford the accused an opportunity of being heard. Learned Trial Judge. It is contended has acted on the part statement of the prosecution witness whose statement is yet to be tested at the touch stone of cross examination. 3. Heard and considered. 4. Right to life and liberty is one of the most cherished rights of a person. The right is not to be interfered with except in accordance with procedure established by law. Such an eventuality may arise when accusation of commission of a non-bailable offence is made against a person. In such event also, the accused is not to be detained as a measure punishment but only to facilitate investigation. The Court after taking into account gravity of the alleged crime, nature of the charges, available evidence and possibility of interference with the course of justice, the antecedents of the accused, may enlarge the accused on bail subject to such conditions as it deems fit. The Court however, is not to refuse or extend bail as a matter of punishment. The court is to be conscious that there is a presumption of innocence in favour of the accused, once the accused is admitted to bail, the accused gets clothed with the right to be free from any restraint as far as the accusation leveled against the accused is concerned. 5. So viewed, the concession extended to the accused can not be lightly interfered with and withdrawn unless and until there are compelling reasons to withdraw the concessions and further more the accused has been given an adequate opportunity to explain his stand. It needs no emphasis that the court that has granted bail to the accused or are is otherwise seized of the matter, may take steps for cancellation of bail granted to the accused, when there is some material before the Court that was not earlier available when the bail was granted or some developments have taken place after the bail was granted which must persuade the Court to consider cancellation of bail granted to the accused. In such situation least that is expected of the Court, is to make the accused aware of such material or the developments that have taken place and afford the accused an opportunity to make respondents and clear his stand. The accused has a right to convince the court that the material on which reliance is proposed to be placed or the development that are reported to the court are not credit worthy and or must not other-wise inspire confidence so as to warrant cancellation of the bail. The accused has a right to dispel all doubts regarding his activities past or present which may otherwise prompt the court to cancel the bail granted to the accused. 6. In the present case the Learned Trial Judge appears to have been swayed by the painful story narrated by PW- Mst. Shameema and details of the treatment allegedly meted out to her by the petitioners/accused, on the dreadful night of intervening 5.5.2007. There can be no disagreement with the legal proposition that a Trial Court is within its powers to order cancellation of bail against the accused granted to them suo-moto even without waiting for an application for the purpose to be moved by the prosecution or complainant. However, Learned trial Judge ought to have issued a notice to the petitioners/accused signifying his intention to consider cancellation of bail granted to the petitioners/accused on the grounds detailed in the notice and afforded an opportunity to the petitioners/accused to project their case in opposition to the proposed action. It is only thereafter that the Trial Judge could have proceeded to order cancellation of bail to the accused. It needs no emphasis, that the considerations that must weigh with the Court while ordering cancellation of bail are markedly different from the consideration for granting bail. The cancellation of bail essentially involves review of the earlier decision to admit the accused to the bail and such review can be undertaken only if there are compelling reasons to give a second look to the earlier order and the accused is given an opportunity to respondent to such reasons. The cancellation of bail essentially involves review of the earlier decision to admit the accused to the bail and such review can be undertaken only if there are compelling reasons to give a second look to the earlier order and the accused is given an opportunity to respondent to such reasons. The attempt by the accused to temper with prosecution evidence intimidate or influence the witnesses obstruct the trial, give a slip to the law or repeat the offence are some of the circumstances in which bail granted to the accused may be cancelled at a subsequent stage provided of-course there is material to lead to such a conclusion and the accused is afforded an opportunity to refute and belie such material. In the present case Learned Trial Judge relying on part statement of one persecution witness that was yet to be tested at the anvil of cross examination, without giving any notice to the petitioners/accused, let alone providing the petitioners/accused a fair and adequate opportunity to show cause against the proposed action, has rushed to order cancellation bail . The order is thus not in conformity with law. 7. So viewed, the order dated 25.03.2010 amounts to abuse of process of court and to secure ends of justice exercise of inherit powers under Section 561-A is called for. The petition is accordingly accepted and the order dated 25.03.2010 quashed. The petitioners/accused be let of on their furnishing surety bonds in the amount of Rs. 25,000 and personal bond in the identical amount to the satisfaction of Registrar Judicial, High Court. Needles to mention that Learned Trial Judge, if of the view that facts and circumstances warrant cancellation of bail of the petitioners/accused may proceed in that direction and pass orders warranted under law, of-course after the petitioners/accused are heard and afforded an opportunity to project their case in opposition to proposed action. The petition along with CMP No. 21/2010 is disposed of accordingly.