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2013 DIGILAW 412 (JK)

Shiv Krishan Sharma v. State

2013-07-19

Mansoor Ahmad Mir

body2013
1. Petitioners have invoked the jurisdiction of this Court in terms of the provisions of Code of Criminal Procedure (for short, Cr.P.C.) read with the provisions of J&K Prevention and Suppression of Sabotages Act, 1965 (for short, the Sabotages Act) for grant of bail in FIR No. 33/2013 registered at Police Station Thathri, District Doda, under section 307 of Ranbir Penal Code (for short, RPC); 3/4 of Explosives Substances Act, 1908; 3/25, 7/27 of Arms Act, 1959 and Section 3 of the Sabotages Act. 2. It is contended that petitioner no. l is innocent and has been falsely implicated in the case. Further, it is contended that he has done commendable job while taking part in anti-insurgency operations. He was given out-of-turn promotion to the post of Sub Inspector in the year 2005. He was performing his duties with utmost zeal and dedication and has played a great role in killing as well as making dreaded militants to surrender and also effecting recovery of huge arms and ammunition. Thus, it is pleaded that petitioner no. l has unblemished service record, as he has earned eight medals/commendation certificates including President's Police Medal, Sher-e-Kashmir Gallantry Award, DG Commendation Certificate, GOC-in-Command Commendation Certificate and various other certificates. 3. Petitioner no. 2 is serving as a Constable in the Police Department. He was posted as a PSO with petitioner no. l while serving in SOG at District Doda. 4. It is contended that both the petitioners have earned hostility and grudge at the hands of the people who were inimical to them, have been involved in a false case and the present FIR is the outcome of such conspiracy and animosity. 5. That the petitioners had applied for grant of bail before the Chief Judicial Magistrate, Doda. The said application came to be dismissed as withdrawn. Thereafter, they applied before the Additional Sessions Judge, Doda, who vide order dated 14.06.2013 returned the same to the petitioners for presenting the application before the appropriate forum. The petitioners then applied for bail before the Principal Sessions Judge, Bhadarwah and the same came to be dismissed as not pressed vide order dated 19.06.2013. 6. Thereafter, they applied before the Additional Sessions Judge, Doda, who vide order dated 14.06.2013 returned the same to the petitioners for presenting the application before the appropriate forum. The petitioners then applied for bail before the Principal Sessions Judge, Bhadarwah and the same came to be dismissed as not pressed vide order dated 19.06.2013. 6. It is averred that in terms of the mandate of provisions of the Sabotages Act, the trial is to be conducted by a Special Judge to be appointed by the Government under Section 2 of the Act and he is the only competent authority to grant remand or consider the bail application. Since the Government has failed to appoint/nominate a Special Judge under the Act, the petitioners have been constrained to invoke the jurisdiction of this Court. It is further contended that the remand granted from time to time, i.e., after the expiry of 15 days is without competence and jurisdiction and virtually the petitioners are in illegal detention, hence are entitled to bail. 7. Respondents while resisting the petition alleged that the petitioners are involved in a heinous and serious offence. They have given in detail how petitioner no. l in connivance with petitioner no. 2 had been making illegal acts, thereby earning bad name not only for the State, but for the entire nation. They have cited reasons how petitioners were misusing their position in order to obtain out of turn promotion. It would be appropriate to reproduce paragraphs 1 and 2 herein. "That during the course of investigation of case FIR No. 33/2013 registered in P/S Thathri regarding the lobbying of Chinese hand grenade on 28.04.2013 at P/S thathri, a suspect namely Mohd. Rafi S/o Mohd. Ibrahim R/o Goni Patnazi was apprehended, at whose instance one Chinese Pistol, along with its magazine and five live rounds, came to be recovered vide recovery/seizure memo dated 21.04.2013. The said Mohd. Rafi during his interrogation revealed that the said pistol had been given to him by one Abdul Rashid @ Abdullah S/o Mohd. Iqbal Harga R/o Tanta Tehsil Thathri with the direction to carry out some subversive act in District Doda and for this purpose the said Abdul Rashid took him to Bhaderwah to eliminate Gupta Bakery Wala at Seri Bhaderwah and also kill some police personnel who are deployed near Jamia Masjid Bhaderwah. Mohd. Iqbal Harga R/o Tanta Tehsil Thathri with the direction to carry out some subversive act in District Doda and for this purpose the said Abdul Rashid took him to Bhaderwah to eliminate Gupta Bakery Wala at Seri Bhaderwah and also kill some police personnel who are deployed near Jamia Masjid Bhaderwah. Mohd. Rafi further divulged that the said Abdullah had also told him that the aforementioned pistol had been given to him by Incharge SOG component Kishtwar, namely, SI Shiv Krishan @ Sonu (the petitioner no. l herein) with the direction to execute the above said plan. However, the said alleged accused Mohd. Rafi could not perform the task so assigned to him by Abdullah and thus returned to Bonjwah and joined the company of his colleagues among whom also Abdullah had distributed the arms/ammunition obtained by him from the petitioner no. l. As per the alleged accused Mohd. Rafi, two unknown kashmiri boys were also part of this racket and other members, who were assigned the task of carrying out subversive activities in the area by Abdullah on the directions of the petitioner no. 1 are (1) Akhter Hussain S/o Shoket Ali Magrey R/o Tanta Tehsil Thathri District Doda (2) Mohd. Yaqoob S/o Fatta Mohd. Gujjar R/o Gharmalu bathri Tehsil Thathri District Doda. 2. That the investigation conducted in the case by Special Investigation Team (SIT) so far has cogently established that in order to earn out of turn promotion as well as monetary benefits and name and fame, both in public and in the departmental hierarchy, both the petitioners hatched a criminal conspiracy and chalked out a plan to engage two kashmiri boys, namely Muzaffar Ahmed S/o Khazar Mohd. Sheikh R/o Tahab Tehsil and District Pulwama and Shahbaz Ahmed S/o Abdul Hamid Butt R/o Pitipura Tehsil and District Pulwama as militants with area of operation in kishtwar and Doda Districts with a criminal design to carry out the aforementioned subversive activities in this part of the state. The alleged accused Abdullah was also forcibly made to be part of this plan by both the petitioners who directed the former to involve some more boys of his area in the said plan in order to achieve their nefarious designs. The alleged accused Abdullah was also forcibly made to be part of this plan by both the petitioners who directed the former to involve some more boys of his area in the said plan in order to achieve their nefarious designs. The investigation conducted so far has brought startling facts to light that after carrying out the subversive activities, there was every likelihood that the petitioners were to eliminate both the kashmiri boys as well as the other accomplices by posing them as terrorists in order to achieve their nefarious designs." 8. It is further contended that the investigation is at its infancy and if the bail is granted, the same would hamper the investigation and the witnesses would not be in a position to depose before the designated court. It is alleged that for petty personal gains/promotion the petitioners had hatched a conspiracy to involve two persons in militancy related activities. As per the plan, both the persons had been given promise for the reward and appointment as SPOs, but the ultimate design was to involve them in fake militancy related activities and then to eliminate them in order to get personal gain/promotion. 9. Respondents have also filed detailed report in a confidential cover, which I have read and I deem it proper to keep the same in a sealed cover. It is shocking to know that how a police officer is involved in such incidents. Less said is better. The matter is still at threshold. 10. The ground urged by the petitioners that though the remand was granted by the Magistrate but is not competent to conduct trial, is no ground to seek bail. The Judicial Magistrate has the power to grant police remand for 15 days and if he considers that the detention is unnecessary, the accused are to be forwarded to the Magistrate having jurisdiction to try the case or commit the same. Proviso `a' to Section 167 Cr.P.C. provides that a Magistrate can after 15 days remand the accused to judicial custody. 11. The Apex Court in case C.B.I. Spl. Investigation Cell-1, New Delhi v. Anupam J. Kulkarni, 1992 Cri.L.J. 2768, held that the Magistrate has the power to grant remand after 15 days even though he has no power to try the case. It would be appropriate to reproduce paragraphs 5 & 8 thereof hereunder. "5. 11. The Apex Court in case C.B.I. Spl. Investigation Cell-1, New Delhi v. Anupam J. Kulkarni, 1992 Cri.L.J. 2768, held that the Magistrate has the power to grant remand after 15 days even though he has no power to try the case. It would be appropriate to reproduce paragraphs 5 & 8 thereof hereunder. "5. Now comes the proviso inserted by Act No. 45 of 1978 which is of vital importance in deciding the question before us. This proviso comes into operation where the magistrate thinks fit that further detention beyond the period of fifteen days is necessary and it lays down that the magistrate may authorize the detention of the accused person otherwise than in the custody of the police beyond the period of fifteen days. The words "otherwise than in the custody of the police beyond the period of fifteen days" are again very significant. 8. Having regard to the words "in such custody as such Magistrate thinks fit for a term not exceeding fifteen days in the whole" occurring in sub-section (2) of Section 167 now the question is whether it can be construed that the police custody, if any, should be within this period of first fifteen days and not later or alternatively in a case if such remand had not been obtained or the number of days of police custody in the first fifteen days are less whether the police can ask subsequently for police custody for full period of fifteen days not availed earlier or for the remaining days during the rest of the periods of ninety days or sixty days covered by the proviso. The decisions mentioned above do not deal with this question precisely except the judgment of the Delhi High Court in Dharam Pal's case, (1982 Cr L.J 1103). Taking the plain language into consideration particularly the words "otherwise than in the custody of the police beyond the period of fifteen days" in the proviso it has to be held that the custody after the expiry of the first fifteen days can only be judicial custody during the rest of the period of ninety days or sixty days and that police custody if found necessary can be ordered only during the first period of fifteen days. To this extent the view taken in Dharam Pal's case is correct." 12. To this extent the view taken in Dharam Pal's case is correct." 12. The Apex Court in State v. Mathivanan, 1994 Cr.L.J. 2795, has held that even if a Magistrate has no power to grant bail in a non-bailable offence acquires the same in terms of the provisions of Cr.P.C. if the investigating agency does not file the final report within the prescribed statutory period. It would be appropriate to reproduce relevant portion of paragraph 9 of the said judgment hereunder. ".....The Magistrate who is not otherwise having the power to release a person accused of a non-bailable offence acquires such a power in the contingency of the investigating agency not filing the final report within the prescribed statutory period, and such released on bail, if the person is prepared to and does furnish bail, shall be deemed to be a release under Chapter of the Code of Criminal Procedure and there is no warrant for the inference or deduction that the accused shall be deemed to have been released on bail on the expiry of 90/60 days, thereby making the further detention illegal." 13. Having said so and in view of the entire facts, the petitioners are not entitled to bail at this stage and their bail application is dismissed. However, petitioners are at liberty to lay a motion before the Special Judge for grant of bail at appropriate stage. Any observation made hereinabove shall not cause any prejudice to the petitioners herein. With these observations this application is dismissed. 14. Before parting, I deem it proper to record herein that the Registry of the High Court has not made efforts right from 2011 to make a communication with the Government for seeking nomination/appointment of a Special Judge. The Government, particularly the Law Department too also remained in a deep slumber. This is how the things are moving here and there. In 2011 Mr. Sanjay Parihar was the Special Judge under the Act. He stands transferred and since then no one has been appointed neither at Jammu nor Srinagar. In the given circumstances, Registrar General of the High Court is directed to make correspondence with the Commissioner/Secretary, Law Department within a period of two days for nominating all Principal Session Judges as designated Judges under the Sabotages Act for their respective territorial jurisdiction. Commissioner Secretary, Law Department is commanded to issue the requisite notification within next two days. In the given circumstances, Registrar General of the High Court is directed to make correspondence with the Commissioner/Secretary, Law Department within a period of two days for nominating all Principal Session Judges as designated Judges under the Sabotages Act for their respective territorial jurisdiction. Commissioner Secretary, Law Department is commanded to issue the requisite notification within next two days. Registrar General and Commissioner/Secretary, Law Department to report compliance in the Registry. 15. Registry is directed to send forthwith a copy of this order to Registrar General, High Court of J&K, Chief Secretary of the State, Commissioner/Secretary, Law Department and Secretary, Home Department.