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2010 DIGILAW 558 (JK)

M. A. Qayoom v. State

2010-11-09

MOHAMMAD YAQOOB MIR

body2010
1. Petition under Section 561-A No. 98/2010 and instant bail petition No. 49/2010, on proper permission, have been presented in this (Srinagar) wing of the High Court. 2. Petition under Section 561-A No. 98/2010, at the request of learned counsel for the petitioner, stand delinked for being considered separately and at the same time at the request of learned counsel for the petitioner this bail application was taken up separately for consideration. 3. Normally petition for grant of bail is to be filed before the committal court or the trial court but petitioner has chosen directly to invoke the jurisdiction of this court under Section 498 Cr. P.C. Detailed objections stand filed. Case diary is also produced for perusal. 4. Two important questions arise for consideration; (1) whether the petitioner can be said to be in custody in connection with case FIR No. 104/2010 so as to maintain the petition, (2) whether discretion for grant of bail is exercisable in affirmative or negative when the petitioner is presently in preventive custody pursuant to the order of detention passed under Public Safety Act. 5. Pre-condition for maintaining the bail petition is that the accused must have been arrested and then while in custody question of release on bail can arise. In this connection certain facts are to be noticed: Petitioner was initially arrested pursuant to detention order No. DMS/PSA/29/2010 dated 7.7.2010 so was lodged in Sub-Jail, Hira Nagar. The said order of detention was challenged by medium of a Habeas Corpus Petition. It is stated that during the said proceedings, a direction came to be issued to the effect that the lodgement of the petitioner shall be re-considered. On re-consideration he has been lodged in Central Jail, Kot bhalawal. In the meantime, the said detention order was revoked by the Government on 16.9.2010, therefore, Habeas Corpus Petition was dismissed as rendered infructuous. 6. On 9.9.2010 a case has been registered against the petitioner in Police Station, Hira Nagar, as FIR No. 104/2010 for commission of offences punishable under Section 13 of ULA Act, Sections 121, 120-B and 124-A RPC and in connection thereof he has been arrested on 17.9.2010 i.e. immediately after revocation of order of detention. 6. On 9.9.2010 a case has been registered against the petitioner in Police Station, Hira Nagar, as FIR No. 104/2010 for commission of offences punishable under Section 13 of ULA Act, Sections 121, 120-B and 124-A RPC and in connection thereof he has been arrested on 17.9.2010 i.e. immediately after revocation of order of detention. On such arrest, the petitioner has been produced before the Court of Judicial Magistrate concerned, who has remanded him to judicial custody for a period of 14 days i.e. up to first day of October, 2010. It is during the period of said judicial remand, fresh order of detention has been passed under Public Safety Act, for execution thereof, permission has been sought and granted by the Judicial Magistrate on 24.9.2010. As a result thereof, said order of detention has been executed and the petitioner has been lodged in Central Jail, Kotbhalwal. It is stated that a separate petition stand filed for quashment of the said detention order which is pending. 7. Learned counsel for the petitioner would contend that the petitioner for all practical purposes is in custody. He stand arrested in connection with case FIR No. 104/2010. His position of being in custody and under surveillance is not refuted, therefore, pre-condition for maintaining the application for bail is satisfied. 8. Learned Senior Additional Advocate General, Mr. A. M. Magray, contended that the petition is premature as the petitioner is in custody in connection with detention order, so grant or refusal of bail will have no effect. 9. Learned counsel for the petitioner in support of the contentions raised relied on various judgments as shall be referred to herein-below. 10. In the judgment Trilochan Singh v. State (Delhi Administration Delhi) (1981 Cri. L. J. 1773), what was settled was that the accused was arrested in connection with one case but later on was shifted and taken over by CBI in connection with other case, question arose as to whether the benefit can be extended under proviso to sub-section (2) of Section 167 Cr. P. C i.e. bail by default while computing the period from the date of initial arrest. It was held that same is to be computed from the date of initial arrest. 11. P. C i.e. bail by default while computing the period from the date of initial arrest. It was held that same is to be computed from the date of initial arrest. 11. In AIR 1970 Bombay 79, the question which arose for consideration was as to whether statement of the person recorded under surveillance is hit by Section 24 of the Evidence Act. It was held that, what amounts to arrest, is clearly laid down in Section 46 of Cr. P.C. In the given circumstances of the said case, the words "in custody" were not held to be equated with the concept of formal arrest as there is a difference between the two. The case was dealt with under Customs Act. It was held that the statement recorded of the person before his production before the Magistrate by the Custom authorities is not hit by Section 24 of the Evidence Act. 12. In AIR 1980 SC 1632 , it has been held that grant of anticipatory bail is not permissible after arrest. 13. In 1983 Cr. L. J 633, it has been held that the intention of the Legislature in enacting the proviso to Section 167(2) appears to be to ensure that every investigation under Chapter XII must be completed without un-necessary delay and for that purpose a time limit has been fixed. In the reported judgment the question vis-a-vis benefit of bail by default or compulsory bail has been dealt with. 14. In the judgment reported in 1983 J & K Law Reporter 1082, it has been held that "the words "authorised custody" would mean police custody and judicial custody in a particular case. Such custody cannot be diverted or transferred except in accordance with provisions of law and the period of limitation which commences to run in a particular case for the purposes of proviso (a) to sub-section (2) of section 167 of the Criminal Procedure Code, can neither be transferred nor diverted or stopped". It has been further held that "the period of detention has to be computed in a particular case un-interruptedly from the date when an accused is produced before the Magistrate and cannot be tagged or separated if the accused person is involved in more than one case". 15. In the above referred judgment question for consideration was as to how the benefit of proviso (a) to sub-section (2) of section 167 Cr. 15. In the above referred judgment question for consideration was as to how the benefit of proviso (a) to sub-section (2) of section 167 Cr. P.C is available and how the period of detention is to be computed in a particular case. 16. In another judgment reported in AIR 1994 SC 1349 , what has been laid down is that arrestee has a right to have informed some one about his arrest and has a right to consult privately with lawyer and it has also been held to be the duty of the police to inform the arrestee. 17. Perusal of the case diary of the case in hand reveals that the same has been complied with. 18. In the judgment captioned Niranjan Singh & anr. v. Prabhakar Rajaram Kharote & Ors ( AIR 1980 SC 785 ), the question arose as to what custody means within the meaning of Section 439 Cr. P.C. It has been ruled that "when a person is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court's jurisdiction and submitted to its orders by physical presence is in custody". It has been further held that "custody in the context of Section 439, (we are not, be it noted, dealing with anticipatory bail under S. 438) is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court". 19. In the backdrop of the law as has been laid down considered the matter. Admittedly petitioner stand arrested in connection with FIR No. 104/2010, thereafter his custody has been shifted. Therefore, arrest coupled with custody even though pursuant to the order of detention means that he is under surveillance which means to be in "authorised custody, therefore, petition under Section 498 (corresponding to Section 439 of the Central Code) on the pre-condition of petitioner being in custody, is maintainable. 20. Now the question No. 2 "as to whether exercise of discretion in favour or against is warranted when the petitioner is already in preventive custody pursuant to order of detention for a particular period as specified therein". 20. Now the question No. 2 "as to whether exercise of discretion in favour or against is warranted when the petitioner is already in preventive custody pursuant to order of detention for a particular period as specified therein". The object of grant of bail is to release a person from the custody and equally true to refuse the grant of bail means to keep the person in custody. So in both cases, whether grant or refusal, accused can neither be released nor his custody can be governed by such order until the accused is in preventive custody. 21. In case grant of bail would have been sought in terms of proviso to sub-section 2 of section 167 Cr. P.C, the matter was to be addressed in the same background i.e. compulsory bail or bail in default, as it may be called, is a right which accrues to the accused on the expiry of the period prescribed for filing of final report in terms of Section 173 Cr. P. C and such right is to be availed well in time and necessary orders are to be passed so as to avoid deprivation of an accrued right, hardly matters it may take effect immediately or afterwards. 22. In the instant case the prescribed period for completion of investigation, rather for filing report under Section 173 Cr. P. C as yet has not expired, therefore, right to bail in default is neither claimed nor is available. However, this is answered in the backdrop of the law as has been laid down in the judgments relied by the learned counsel for the petitioner as referred to hereinabove. 23. Now the application for grant of bail in terms of Section 498 Cr. P.C has to be considered within the parameters of the discretion. The exercise of discretion is not unfettered. Discretion has to be exercised on sound judicial principles. Host of circumstances which include severity of crime committed, punishment prescribed for the offence, social aspect etc have to be taken note of. 24. The most important factor in view of peculiar circumstances of the case is as to whether exercise of such power at this stage is warranted? Discretion has to be exercised on sound judicial principles. Host of circumstances which include severity of crime committed, punishment prescribed for the offence, social aspect etc have to be taken note of. 24. The most important factor in view of peculiar circumstances of the case is as to whether exercise of such power at this stage is warranted? It will be simply ambitious act to consider the matter for exercise of discretion, as grant or refusal of concession of bail, when petitioner is already in preventive custody pursuant to order of detention, shall have no bearing in both ways i.e. accused can neither be released nor his custody will be governed by any such order. The petition, as such, on the face of it is premature. 25. It shall be useless to look into the merits of the case as may emerge from the records coupled with the host of circumstances so as to persuade the Court to accept or refuse the grant of bail. At this stage to comment on merits even for prima facie purposes shall be of no avail. 26. Petition for the stated reasons being premature is dismissed. However, petitioner shall be at liberty to invoke the jurisdiction of this court, committal court or trial court as shall be permissible, at an appropriate time for grant of bail. 27. Case diary as produced be returned back to Mr. Magray, learned Senior Additional Advocate General.