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2012 DIGILAW 568 (JK)

Habibullah Mir & Ors. v. State & Ors.

2012-09-11

MANSOOR AHMAD MIR

body2012
1. Petitioners have invoked the jurisdiction of this Court for grant of bail in terms of Section 498 of the Code of Criminal Procedure (for short Cr. P.C.) on the grounds taken in the instant motion. 2. The respondents have filed their objections and also the latest status report. 3. From perusal of the record, it is revealed that, on 31.07.2012, a written report was lodged by one Jehangir Ahmad Bhat in Police Station, Kupwara, stating therein that the petitioners and other accused persons have assaulted and attacked the informer and his family. It was alleged that they formed an unlawful assembly, entered the house of the informer carrying axes and sticks in their hands and one Shabir Ahmad Bhat, brother of the complainant sustained injuries on head and was seriously injured, who was taken to the Hospital for treatment. The accused persons also damaged the property, both moveable and immoveable of the informer and thus caused the damage and injury. 4. Police took up the investigation, recorded statement of witnesses and came to the conclusion that the accused persons are prima facie involved in the commission of offences punishable under Sections 307,380,452,379,435,148,336,427 RFC. The petitioners-accused persons came to be arrested on 04.08.2012. They approached the Court of Sessions Judge concerned for grant of bail, which was rejected in terms of order dated 13.08.2012. Consequently, they have approached this Court through the instant motion laid on 23.08.2012, which is on the dockets of this Court right from that date. 5. Learned counsel for the petitioners in the open Court made a statement at the Bar that the injured persons have been discharged from the Hospital and investigation is complete and only challan is required to be presented in the competent Court of jurisdiction. Mr. Kawoosa, learned appearing counsel for the respondents has not denied the fact that the injured persons have been discharged from the Hospital. The respondents in their objections have stated that 11 accused persons have applied for bail and nine accused persons are still absconding. The latest status report reveals that six persons out of 11 accused persons have been arrested on 31.08.2012 and are in police lock up. Admittedly, the petitioners are in the custody right from 01.08.2012. In terms of Section 497-B Cr. The latest status report reveals that six persons out of 11 accused persons have been arrested on 31.08.2012 and are in police lock up. Admittedly, the petitioners are in the custody right from 01.08.2012. In terms of Section 497-B Cr. P. C, the accused, who are involved in the commission of offence under section 435 RPC, which is a special offence, are to be released on bail immediately after two weeks from the date of arrest, if challan is not presented within two weeks from the date of their arrest. It will be advantageous to reproduce hereunder Section 497-B of Code of Criminal Procedure, which reads as under: "497-B. Special Provision regarding bail: Notwithstanding anything contained in this Code but subject to the provisions of section, 498, no person accused of an offence punishable under section 152, 153-A, 295, 295-A, 296, 297, 298, 435, 436 or 505 of the State Ranbir Penal Code shall be released on bail unless:- (a) the prosecution has been given an opportunity to oppose the application for such release; and (b) The Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence: Provided that the accused shall be released on bail if the investigation has not been completed within two weeks." 6. Admittedly, no challan has been presented and thus the petitioners are entitled to grant of bail for commission of the said offences as a matter of right in terms of the settled position of law. 7. As per the police report, the accused are not involved in the commission of offences punishable with death sentence or life imprisonment. Thus, they are entitled to bail; provided they make out a case for grant of bail. Admittedly, the investigation is also complete and more than 40 days have elapsed since the arrest of the accused and they are still in. Moreover, there is no allegation that they are not cooperating with the investigating agency or that they or their relations, in any way, hampered the investigation or tampered with the prosecution evidence. It needs a mention here that the trial court has dismissed their bail application not on the merits of the case, but on the ground that if the accused persons are enlarged on bail, it will be at the risk of the life of the complainant and also will amount to hampering the investigation. It needs a mention here that the trial court has dismissed their bail application not on the merits of the case, but on the ground that if the accused persons are enlarged on bail, it will be at the risk of the life of the complainant and also will amount to hampering the investigation. From that date till today, more than one month has elapsed and investigation is complete, as detailed hereinabove. 8. Even otherwise I have gone through the photocopies of the police report, objections filed by the respondents, besides the latest status report filed by Mr. Kawoosa. I am of the considered view that the petitioners have carved out a case for grant of bail. 9. Accordingly, I deem it proper to allow this bail petition. It is, therefore, ordered that the petitioners shall be enlarged on bail in FIR No. 271/2012 under Sections 307, 380, 452, 379, 435, 148, 336, 427 RPC registered in Police Station, Kupwara, subject to the following conditions: a) The petitioners are directed to furnish the bail bonds to the tune of Rupees one lac each with two sureties of the like amount to the satisfaction of the Investigating Officer; b) The petitioners shall remain available before the Investigating Officer whenever required to do so and shall also cause appearance before the Committal Court; c) The petitioners shall not leave the limits of the Kashmir province without the permission of the trial Court; d) The petitioners shall not try to jump over the bail and tamper the prosecution witnesses in any way; e) That in case the petitioners make disclosure statement, which may lead to recovery, in that event they shall be deemed to be in police custody in terms of the provisions of Section 27 of the Evidence Act, 1977. 10. In the aforementioned backdrop, this bail petition stands disposed of.