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J&K High Court · body

2010 DIGILAW 658 (JK)

Mian Ab. Qayoom v. State Of J&K

2010-12-31

Mansoor Ahmad Mir

body2010
This Order will govern the bai petition under Section 498 Code of Criminal Procedure (for short Cr.P.C) for grant of bail in favour of the petitioner on the grounds taken in the memo of petition. 2. Respondents have filed the objections and resisted the same. 3. The following are the grounds urged by the petitioner in support for grant of bail: i) that he is innocent, came to be involved in a false, frivolous, baseless, managed and manipulated F.I.R in order to avoid his release after revocation of the first detention order and even after quashment of second detention order; ii) that there is no material collected by the Investigating Officer which would indicate that he is involved in any illegal activity/activities; iii) that the grounds urged in the F.I.R were also taken in the memo of petition filed by State in opposition to the Habeas Corpus petition-petition filed by petitioner; iv) petitioner has moved a petition under Section 561-A Cr.P.C which is pending and along side had filed an application for grant of bail, came to be rejected on the ground that on the said date the petitioner was not in custody in the said F.I.R. 4. Respondents have resisted the petition on the following grounds:- i) that petitioner has to seek bail from the Court of first instance, but has not exhausted the said remedy, which amounts to taking away the revisional/appellate forum; ii) petition in hand is second application, is not maintainable because the first application came to be dismissed and new facts/circumstances have not been pleaded; iii) that petitioner is involved in commission of heinous and serious offences punishable under Sections 13 of Unlawful Activities (Prevention) Act, 1967 (for short the `Act’); 121/120-B and 124-A of Ranbir Penal Code (for short R.P.C); iv) that period of ninety days has not expired, thus, petitioner cannot claim bail in default. 5. Petitioner has remedy in terms of Section 497 Cr.P.C to seek bail by laying motion before the Court of first instance. The Apex Court in case titled Gurcharan Singh and others v. State (Delhi Administration) reported in (1978) 1 SCC 118 observed that it is proper to exhaust first remedy. It is apt to reproduce para 24 of the said judgment herein:- "24. The Apex Court in case titled Gurcharan Singh and others v. State (Delhi Administration) reported in (1978) 1 SCC 118 observed that it is proper to exhaust first remedy. It is apt to reproduce para 24 of the said judgment herein:- "24. Section 439 (1), Cr.P.C of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437 (1) there is no ban imposed under Section 439 (1), Cr.P.C against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1), Cr.P.C of the new Code. The over-riding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437 (1) and Section 439 (1), Cr.P.C of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out." No doubt the remedy in terms of Section 498 Cr.P.C can be availed but it would amount to depriving the party a forum against whom the order would be passed by the Court of first instance. In this backdrop, it is proper to direct petitioner to approach the Court of first instance. 6. The question is whether the prosecution has committed a default in terms of provisions of Section 167 of Cr.P.C read with Section 43 (d) of the Act? 7. In this backdrop, it is proper to direct petitioner to approach the Court of first instance. 6. The question is whether the prosecution has committed a default in terms of provisions of Section 167 of Cr.P.C read with Section 43 (d) of the Act? 7. It is beaten law of the land that the investigating agency is to present charge sheet in terms of Section 173 of Cr.P.C within the time frame provided by Section 167 of Cr.P.C read with Section 43 (d) of the Act. Time frame provided is ninety days. Admittedly, petitioner came to be arrested on 17th of September’ 2010 and is in custody, however, he was lodged in Central Jail, Kot Bhalwal, Jammu in terms of the routine order passed by the remand Magistrate after noticing the detention order. 8. Apex Court in case titled as Aslam Babulal Desai v. State of Maharashtra, reported in AIR 1993 SC 1 has held that the purpose, aim, scope & object of time frame given in Section 167 of Cr.P.C read with Act is to take investigation to its logical end within the time frame. It is apt to reproduce relevant portion of para 40 herein:- "40. The purpose of interpretation is to sustain the law. The Court must interpret the words or the language in the statute to promote public good and misuse of power is interdicted. Criminal law primarily concerns with social protection and prescribes rules of behaviour to be observed by all. Law punishes for deviance, transgression, violation or omission. Liberty of the individual and security and order in the society or public order are delicate and yet paramount considerations. Undue emphasis, on either would impede harmony and hamper public good as well as disturb social weal and peace. To keep the weal balanced, must be the prime duty of the Judiciary. The purpose of the proviso to S. 167(2) read with Chapter XXXIII of the Code is to impress upon the need for expeditious completion of the investigation by the police officer within the prescribed limitation and to prevent laxity in that behalf. On its default the Magistrate shall release the accused on bail if the accused is ready and does furnish the bail. . . . ." 9. On its default the Magistrate shall release the accused on bail if the accused is ready and does furnish the bail. . . . ." 9. Apex Court in the cases titled Babubhai Bhimjibhai Kachadiya v. State of Gujarat, reported in 2001 Cri.L.J 3876, Rehemankha Kalukha v. State of Maharashtra reported in 2002 Cri.L.J 24 (SC) and Akhlak v. State of Madhya Pradesh reported in 2000 Cri.L.J 4899 has laid down the same principle. It is profitable to reproduce para 12 & 20 of the judgment reported in 2000 Cri.L.J 4899 herein:- "12. A Judge cannot be a silent spectator nor can have a platonic approach. A Judge is under an oath to decide without fear and favour. Once he is afraid of the public criticism then he is not discharging his duties judicially." "20. In the matter of Dr. B. S. Panchal v. State of Gujarat, AIR 1996 SC 2897 : (1996 Cri. L. J 1652), considering the provisions of Narcotic Drugs and Psychotropic Substances Act specially S. 37 of the Act, the Supreme Court observed that S. 37 of the Act does not exclude application of proviso (a) to S. 167(2), therefore failing of prosecution to file charge-sheet within prescribed time under S. 167(2) would create a right in favour of the accused. The Supreme Court following the judgment of the constitutional Bench in the matter of Sanjay Dutt (1995 Cri. L. J 477) (supra) observed that the right would remain indefeasible between the date of the default and filing of the challan and, if an accused person fails to exercise his right to be released on bail, after filing of the charge sheet he cannot exercise the right available to him under S. 167(2). The Supreme Court also observed that once such an accused is released under S. 167(2) of the Cr. P.C. He cannot be re-arrested on the mere filing of the charge-sheet." 10. Division Bench judgment of this Court titled Riyaz Ahmad and others v. State reported in 1990 S.L.J 225 is also governing the field. It is apt to reproduce para 10, 11 & 12 herein:- "10. P.C. He cannot be re-arrested on the mere filing of the charge-sheet." 10. Division Bench judgment of this Court titled Riyaz Ahmad and others v. State reported in 1990 S.L.J 225 is also governing the field. It is apt to reproduce para 10, 11 & 12 herein:- "10. We would, therefore, hold that an accused person arrested in connection with an offence is entitled to the grant of bail after the expiry of the period prescribed by proviso (a) to sub-section (2) of Section 167 of the Criminal Procedure from the date he is first produced before the Magistrate after authorised custody of the police to investigate within a period of 24 hours. Such period of detention would be computed irrespective of the arrest of the accused in more than one case. The Investigating Agency is under an obligation to complete the investigation in one case before transferring the custody to another case and if the transfer of the custody is imminent specific orders be obtained in that behalf where the Court may pass consciously a speaking order." "11. 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. The police force in our Country has to reconcile itself with the changed situation and realize that the people and the State are governed by a democratic Constitution which confers Fundamental Rights upon the citizens and does not authorise any individual or authority to infringe any one of them. A scientific approach to the situation of criminal investigation is expected from the modern police of this Democratic country. No Police Officer can be allowed to play with the civil liberties of the citizens without authority of law nor authorised to detain a person beyond the period sanctioned in that behalf by the Legislature. The investigations are hoped to be completed strictly according to law and within the frame work of the Constitution and the boundaries of Limitation prescribed by the statute governing the curtailment of civil liberty of an individual." "12. The investigations are hoped to be completed strictly according to law and within the frame work of the Constitution and the boundaries of Limitation prescribed by the statute governing the curtailment of civil liberty of an individual." "12. In view of what we have observed hereinabove it is held that the custody of an accused person arrested in a particular case cannot be authorised in another case without a conscious and speaking judicial order in accordance with the provisions of law. No person can be deprived of the benefits of the grant of bail conferred upon him under proviso (a) to sub-section (2) of Section 167 of Criminal Procedure Code. The period of detention has to be computed in a particular case uninterruptedly 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. . . ." Thus, indefeasible right/ bail in default/ compulsory bail cannot be taken away by mere change of custody. 11. Mr. Magray, Senior Additional Advocate General, in support of his arguments cited a judgment delivered by a Single Bench of this Court in case titled Shafait Ali & anr., v. State through SHO Police Station Basohli reported in 2005 (II) S.L.J 595. The said judgment is not binding in view of the judgments of the Apex Court (supra) and the judgment delivered by the Division Bench of this Court (supra). 12. It is also apt to mention herein that a co-ordinate Bench of this Court while dismissing first application for grant of bail filed by the petitioner has held that he was still in custody in the said F.I.R. It is profitable to reproduce relevant para of the said judgment delivered in bail application No. 49 of 2010 decided on 9th of November’ 2010. "In the backdrop of the laws 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. "In the backdrop of the laws 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." The judgment of the Single Bench is later in point of time and came to be delivered between the same parties, is to be followed. 13. In the given circumstances, is it proper to grant interim bail till the Court of first instance decides the application? The time frame provided by Sections 167 of Cr.P.C and 43(D) of the Act has expired and the Investigating Agency has not filed the final report/challan before the Court of competent jurisdiction. 14. Keeping in view the judgments of the Apex Court (supra) particularly the judgment reported in AIR 1993 SC 1 (supra) and Division Bench judgment of this Court reported in 1990 S.L.J 225 (supra), accused is entitled to bail as a matter of right despite of the fetters, restrictions and restraints contained in Section 497 Cr.P.C read with Section 43(D) of the Act, but handicap is Proviso to Sub-Section 2 of Section 43 (D) of the Act. It is apt to reproduce the said sub-section herein:- "43D (2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2),-- (a) the references to "fifteen days", "ninety days" and "sixty days" wherever they occur, shall be construed as references to "thirty days", "ninety days" and "ninety days" respectively; and (b) after the proviso, the following provisos shall be inserted, namely;- "Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days." 15. In terms of the mandate of this provision the Public Prosecutor can make a motion along with the report of the police-Investigating Officer indicating the reasons for not completing the investigation within the prescribed period of ninety days and the specific reasons for the detention of the accused beyond the prescribed period of ninety days, if the Court is satisfied, may grant detention of the accused beyond the said period of ninety days but not more than one hundred eighty days. It is not known whether any such motion was moved by the police/Investigating Agency/Public Prosecutor before the Court and what was the order passed. However, it appears that prosecution has not laid any such motion while keeping in view its stand as discussed hereinabove. 16. It is also a moot question whether a motion can be made in terms of proviso to Sub-Section 2 of Section 43 (D) after the expiry of the time frame and whether right accrued after expiry of the said time frame, can be taken away, thereafter, by laying motion? I refrain from offering comments because all the questions/issue(s) are to be determined by the Court of first instance. Apex Court in case titled S.N.Thapa v. State of Maharashtra reported in (1994) 4 SCC 38 granted interim bail. It is apt to reproduce para 8 & 9 herein:- "8. In the result, this appeal is allowed, the order of the Designated Court is set aside and the appellant is directed to be released on interim bail, subject to furnishing of a personal bond of Rs. 1,00,000 before the Designated Court and two sureties of Rs. 50,000 each to the satisfaction of the Designated Court. The matter is remitted to the Designated Court for reconsideration of the bail application in the light of fresh material that might have been collected against the appellant during investigation." "9. Till the grant of final bail the appellant shall not leave Bombay. The passport etc., if any, shall stand impounded and the appellant shall not be permitted to leave the country. It shall be open to the Designated Court if it comes to conclusion that the appellant is entitled to be released on bail to impose such conditions as it considers necessary. If the Designated Court refuses bail and rejects the application the appellant will surrender to his bail." Full Bench of Allahabad High Court in case titled Dr. It shall be open to the Designated Court if it comes to conclusion that the appellant is entitled to be released on bail to impose such conditions as it considers necessary. If the Designated Court refuses bail and rejects the application the appellant will surrender to his bail." Full Bench of Allahabad High Court in case titled Dr. Vinod Narain v. State of U.P (FB) reported in 1996 Cr.L.J 1309 (All) in para 76 has held as under:- "76. Here we may observe that the law in respect of scope of Article 21 of the Constitution as developed by the Apex Court, may be applied in such cases where dignity of the citizen is at stake. Indeed, in appropriate cases, while considering bail application sunder Section 437 of the Code, taking into account the attending circumstances narrated in the bail application and subject to availability of police papers to the satisfaction of the court, after hearing the prosecution and accused, if the Court is satisfied with the case, it may at its wisdom, pass necessary orders same day, or in the event of adjournment, in rarest of rare cases in extreme circumstances illustration of which cannot be formulated may, after only recording cogent reasons therefore, grant interim bail to meet the ends of justice. The reasoning is also supported by the following cases where apex Court has also granted interim bail. See S.M.D Kiran Pasha’s case (1989) 4 JT 366 Ghanshyam Dass Jai’s case (1982) 3 SCC 389 (supra). Otherwise, the provisions of Art. 21 of the constitution and concerned provisions of the Code would become lifeless, absurd, srtultifying self defeating, jettisoned and a decorative piece of the Statute Book." Apex Court in a recent judgement titled as Sukwant Singh v. State of Punjab reported in 2010 AIR SCW 1185 has also laid down the parameters for grant of interim bail. It is apt to reproduce para 3 & 4 of the said judgment herein:- "3. We are not inclined to interfere with the impugned judgment and order. However, following the decision of this Court in the case of Kamlendra Pratap Singh v. State of U.P & Ors. 2009 (4) SCALE 77, we reiterate that a Court hearing a regular bail application has got inherent power to grant interim bail pending final disposal of the bail application. However, following the decision of this Court in the case of Kamlendra Pratap Singh v. State of U.P & Ors. 2009 (4) SCALE 77, we reiterate that a Court hearing a regular bail application has got inherent power to grant interim bail pending final disposal of the bail application. In our opinion, this is the proper view in view of Article 21 of the Constitution of India which protects the life and liberty of every person. When a person applies for regular bail then the court concerned ordinarily lists that application after a few days so that it can look into the case diary which has to be obtained from the police authorities and in the meantime the applicant has to go to jail. Even if the applicant is released on bail thereafter, his reputation may be tarnished irreparably in society. The reputation of a person is his valuable asset, and is a facet of his right under Article 21 of the Constitution vide Deepak Bajaj v. State of Maharashtra & Anr. JT 2008 (II) SC 609: (2008 AIR SCW 7788) 4. Hence, we are of the opinion that in the power to grant bail there is inherent power in the court concerned to grant interim bail to a person pending final disposal of the bail application. Of course, it is in the discretion of the court concerned to grant interim bail or not but the power is certainly there." 17. In the given circumstances the following order is, hereby, passed: i. Bail petition is transferred to the Court of Principal Sessions Judge, Kathua/trial Court for disposal under law by or before 20th of January 2011. ii. Parties are directed to cause appearance before the transferee Court/trial Court on 5th of January 2011. iii. In the given circumstances the following order is, hereby, passed: i. Bail petition is transferred to the Court of Principal Sessions Judge, Kathua/trial Court for disposal under law by or before 20th of January 2011. ii. Parties are directed to cause appearance before the transferee Court/trial Court on 5th of January 2011. iii. Petitioner is directed to be released on interim bail till 20th of January 2011, provided he is not required in any other case/cases, subject to the following conditions:- (a) has to furnish bail bond to the tune of rupees one lac with two sureties of like amount to the satisfaction of transferee Court/trial Court; (b) shall remain present before the investigating agency whenever required to do so; (c) shall not leave the territorial limits of J&K State without the permission of the transferee Court/trial Court; (d) shall not try to win over or harass the prosecution witnesses in any way; (e) in case he makes any disclosure statement which would lead to recovery, in that event he shall be deemed to be in police custody in terms of Section 27 of the Evidence Act, Svt. 1977 (1920 A.D.); (f) if the transferee Court/trial Court refuses bail and rejects the bail petition the petitioner has to surrender. It is made clear that grant of interim bail or observations/discussion made hereinabove shall not influence the transferee Court/trial Court and shall not cause prejudice to any of the parties in any way. The transferee Court/trial Court is left free to make a decision as warranted under law. 18. Registry to convey the order to the transferee Court/trial Court today itself and also furnish a copy of the same to learned counsel for petitioner for placing the same before the transferee Court/trial Court. Registry is also directed to send down the file under rules well before 5th of January 2011.