Research › Search › Judgment

J&K High Court · body

2013 DIGILAW 421 (JK)

Nazir Ahmad Shah v. State

2013-07-25

JANAK RAJ KOTWAL

body2013
1. This is a petition under Section 561-A of the Code of Criminal Procedure (for short the Code) whereby petitioner has sought quashing and setting aside of order dated 17.09.2012 passed by the learned 2nd Additional Sessions Judge, Srinagar, granting anticipatory bail to respondents 3 to 7. 2. Heard. I have perused the record. 3. Relevant facts briefly are these 3.1 The petitioner was running a toll-post (Chungi) at a place called Sumbal as a Contractor. He is maintaining bank account No. CD 2424 with Jammu and Kashmir Bank, Branch, Sumbal and in this account he had deposited about 22 lac rupees collected at the above said toll-post. Petitioner alleges that in furtherance of a conspiracy hatched by private respondent No. 3 with private respondents 4 to 7, who are officials of the above said Bank, entire amount from the account of petitioner was transferred to the account of respondent No. 3 maintained in the Ganderbal Branch of the Jammu and Kashmir Bank, purportedly on the basis of a letter of authority executed by the petitioner. On petitioner's complaint lodged in the Court of the Chief Judicial Magistrate, Srinagar, FIR No. 14/2012 under Sections 420, 468, 471 and 120-B RPC has been registered at Police Station, Crime Branch, Srinagar. On FSL examination, it has been found that petitioner's signature on the authority letter was forged. 3.2 Respondents 3 to 7 approached the Court of learned 2nd Addl. Sessions Judge, Srinagar for anticipatory bail. On presentation of this application on 26.04.2012, learned Court granted them interim anticipatory bail directing that in the event of their arrest, they be released on furnishing bail bonds and personal bonds to the tune of Rs. 30,000/ each with a condition that they will make themselves available before the Investigating Officer as and when directed in connection with the case. Some other conditions were also imposed. Order passed on 26.4.2012 was made absolute and application for bail disposed of vide order dated 17.09.2012. This order is impugned in this petition. 4. 30,000/ each with a condition that they will make themselves available before the Investigating Officer as and when directed in connection with the case. Some other conditions were also imposed. Order passed on 26.4.2012 was made absolute and application for bail disposed of vide order dated 17.09.2012. This order is impugned in this petition. 4. Before taking up this petition on merits, it is apt to state that in Puran v. Rambilas, (2001)6 SCC 338 ( AIR 2001 S.C. 2023 ), Supreme Court has considered the power of the High Court to cancel the bail granted by the Sessions Court and found that as the High Court is a superior Court in hierocracy of the courts, its power under section 439(2) Cr. P. C. (sec. 498 (2) of the Code) can also be exercised in relation to bail orders passed by the Sessions Court. 5. The petitioner's challenge to the impugned order is mainly three folds: (i) that blanket anticipatory bail has been granted to the private respondents for unlimited time, which is not permissible. (ii) that custodial interrogation of the private respondents is required to unearth all the links involved in the criminal conspiracy hatched by them and (iii) that the private respondents are involved in commission of heinous offences but the learned Sessions Judge has granted them absolute anticipatory bail in a casual manner, 6. Mr. Asif A. Bhat, learned counsel for the petitioner, would say that the learned Sessions Judge has granted anticipatory bail to the accused persons for unlimited time, which is not permissible, being contrary to law as laid down by the Hon'ble Supreme Court in K.L. Verma v. State and Ors. (1998) 9 SCC 348 and Salauddin Abdulsamad Shaikh v. State of Maharashtra (1996) 1 SCC 667 . He submitted that even though the case was not fit for anticipatory bail, the same in any case should have been granted for a limited duration and the accused persons should have been asked to approach the competent Court for regular bail where the prayer could have been considered on merit. 7. Per contra, M/s Ishtiyaq Ahmad Khan and N. A. Dandru, learned counsel for respondents 3 to 7, supported the impugned order contending that there is no bar in granting absolute or unlimited duration anticipatory bail to an accused. 8. 7. Per contra, M/s Ishtiyaq Ahmad Khan and N. A. Dandru, learned counsel for respondents 3 to 7, supported the impugned order contending that there is no bar in granting absolute or unlimited duration anticipatory bail to an accused. 8. First I take up the question; should anticipatory bail be granted only for a limited period and the accused asked to approach the regular court for bail? 9. In K. L. Verma and Salauddin Abdulsamad (supra) Supreme Court has taken the view that anticipatory bail should be for a limited period and matter of bail should be left to the regular court. Similar view has been taken by the Supreme Court in Adri Dharan Das v. State of West Bengal (2005) 4 SCC 303 , and Sunita Devi v. State of Bihar and another (2005) 1 SCC 608 . Contention of the petitioner's counsel, therefore, would have prevailed, but cannot, because the view taken by the Supreme Court in these cases has been found not in consonance with the law earlier laid down by the Constitution Bench of the Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 . The Constitution Bench in this case has examined the scope and ambit of the concept of anticipatory bail provided under Section 438 Cr. P. C. (Section 497-A of the Code). As regards the operation of anticipatory bail, Supreme Court in para 42 of the judgment, while framing proposition, "should the operation of an order passed under section 438 be limited in point of time?" has held: ".. Not necessarily. The court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an FIR in respect of the mater covered by the order. The applicant may in such cases be directed to obtain an order of bail under section 437 or 439 of the Code within a reasonably short period after the filing of the FIR as aforesaid. But this need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time." 10. But this need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time." 10. Scope of the orders passed by the Supreme Court after the Constitution Bench judgment in Gurbaksh Singh Sibbia in the cases like K. L. Verma and Salauddin has been examined by the Supreme Court in a latest judgment in Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. (2010) 8 Supreme 353 . In this case the Court has held: "117. The view expressed by this Court in all the above referred judgments have to be reviewed and once the anticipatory bail is granted then the protection should ordinarily be available till the end of the trial unless the interim protection by way of the grant of anticipatory bail is curtailed when the anticipatory bail granted by the court is cancelled by the court on finding fresh material or circumstances or on the ground of abuse of the indulgence by the accused". Earlier in the same judgment the Supreme Court in para 102 has observed that the order granting anticipatory bail for a limited duration and thereafter directing the accused to surrender and apply before a regular bail is contrary to the legislative intent and the judgment of the Constitution Bench in Sibbia's case (supra). Further, in reference to Salauddin Abdulsamad Shaikh (supra) Supreme Court in para 106 of the judgment has observed that the judgment is `contrary to legislative intent and spirit of the very provisions of the anticipatory bail itself and has resulted in an artificial and unreasonable restriction on the scope of enactment contrary to the legislative intention.' 11. Correct legal position, therefore, is this: Operation of anticipatory bail granted under Section 497-A of the Code should not be limited to a particular period of time and the bail so granted should be available till the end of the trial unless it is cancelled. However, it is open to the Court granting the bail to limit operation of the anticipatory bail for a particular time, if there are reasons for so doing. 12. For the aforementioned reasons, the anticipatory bail granted to the private respondents by the learned 2nd Additional Sessions Judge does not call for any interference on the ground that it has been granted for unlimited period. 13. 12. For the aforementioned reasons, the anticipatory bail granted to the private respondents by the learned 2nd Additional Sessions Judge does not call for any interference on the ground that it has been granted for unlimited period. 13. The other argument of the learned counsel for the petitioner is that grant of absolute anticipatory bail to the accused persons has come in the way of investigation as the I. O. has been rendered unable to interrogate them. The bail is, therefore, required to be cancelled so that the accused can be subject to custodial interrogation. Reply argument of the respondents' counsel is that no case or cancellation of bail is made out. 14. Law as regards, cancellation of bail (anticipatory bail) is now well settled. In Dolatram v. State of Haryana, (1995) 1 SCC 349 , the Supreme Court has considered the factors to be taken into consideration while ordering cancellation of bail and has held: "4 Rejection of bail in a non bailable case at the initial stage and the cancellation of bail already granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the ground for cancellation of bail, broadly (illustrative and no exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused I any manner. The satisfaction of the Court, on the basis of material placed on the record or the possibility of the accused absconding is yet another reason justifying the cancellation of bail". 15. Cancellation of anticipatory bail in this case on the ground that grant of absolute anticipatory bail to the private respondents has adversely effected the investigation of the case is not possible because there is no material before this Court to believe nor it has been said that the private respondents have not cooperated in the investigation or have violated any condition of bail. Objection on this score could have been raised by the Investigating Officer but cannot be entertained on behalf of the informant. 16. Objection on this score could have been raised by the Investigating Officer but cannot be entertained on behalf of the informant. 16. Last submission of the learned petitioner's counsel is that learned Sessions judge has passed the impugned order and granted anticipatory bail to the accused persons without application of mind and stating reasons as to how a case for anticipatory bail in this serious matter was made out. While taking me through the impugned order, learned counsel would say that order has been passed casually without application of mind and in utter disregard to the allegations against the accused. Learned counsel pointed out that learned Sessions judge has ignored the FSL report that the petitioner's signature on the so called authority letter was forged. Per contra, learned counsel for the respondents would say that petitioner has falsely implicated the respondents. Ld. counsel for respondent No. 3 sought to demonstrate that as a matter of fact, the toll-post is being run by respondent No. 3, who had engaged the petitioner as his authorized agent but the latter, with the intention of grabbing the collection made at the toll post, implicated him and bank officials in false case. Learned counsel supported the impugned order saying that learned Sessions Judge, after having found the case fit for grant of anticipatory bail, was right in not discussing the merits of the case. 17. It is apt to reproduce the impugned order verbatim: "17.9.2012. Petitioners along with counsel present. Ld. APP for State present. Heard and perused the filed and reported dated 15.09.2012 submitted by I/O Raja Qasim, P/S Crime Branch in FIR 14/2012. Order dated 26.04.2012 is made absolute. Application is disposed of and be made part of challan. Sd/- 2nd Additional District & Sessions Judge, Srinagar. Authorized u/s 76 Evidence Act." 18. A bare reading of the impugned order raises concern indeed, considering the manner in which it has been passed. The impugned order, read with a brief reference to the minutes recorded in the file, would reflect total non-application of mind and perfunctory approach adopted by the learned Sessions Judge. It can be said that the learned Judge as a matter of fact has terminated the proceedings with its natural result granting anticipatory bail to the private respondents, without indicating, much less recording, satisfaction of the learned Judge that the case was fit for anticipatory bail. 19. It can be said that the learned Judge as a matter of fact has terminated the proceedings with its natural result granting anticipatory bail to the private respondents, without indicating, much less recording, satisfaction of the learned Judge that the case was fit for anticipatory bail. 19. Application for anticipatory bail came to be moved on 26.04.2012. Learned Court provided copy of the application to APP, who expressed his intention to produce detailed report and file objections to the application. On the same day, learned Court granted interim anticipatory bail by issuing a direction for their release on bail in the event of their arrest subject, however, to some conditions. So far so good, as the course adopted by the learned Court is in conformity with the guidance rendered by the Supreme Court in Siddharam Satlingapp Mehtre's case (supra) in para 101 of the judgment, which reads: "101. The proper course of action ought to be that after evaluating the averments and accusation available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the public prosecutor. After hearing the public prosecutor the court may either reject the bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of bail. The public prosecutor or complainant would be at liberty to move the same court for cancellation or modifying the conditions of bail any time if liberty granted by the court is misused. The bail granted by the court should ordinarily be continued till trial of the case." 20. Police report dated 15.5.2012 seems to have been produced in the Court on 19.5.2012. In this report, detailed narration of facts of the case is given and it is stated that questioning of accused was required. It is pointed out that as per FSL report signature on the letter of authority have been found forged. APP filed his objections on 02.06.2012. He raised objection to granting absolute anticipatory bail on various grounds. Nothing substantial in the proceedings happened after that. It is pointed out that as per FSL report signature on the letter of authority have been found forged. APP filed his objections on 02.06.2012. He raised objection to granting absolute anticipatory bail on various grounds. Nothing substantial in the proceedings happened after that. Learned Court, however, vide the impugned order passed on 17.09.2012 makes the order dated 26.04.2012, whereby interim anticipatory bail was granted, absolute, purportedly after hearing both sides and after perusing the police report but without recording any reason as to how the case was found fit for grant of anticipatory bail. 21. It cannot be disputed that while passing orders on bail applications (regular or anticipatory) courts should avoid making detailed examination of evidence and elaborate discussion on the merits of the case. Law in this regard has been laid down by Supreme Court in Niranjan Singh v. Prabhakar Rajaram Kharote AIR 1980 SC 785 : (1980 Cri LJ 426). But that would not mean that courts can grant bail or anticipatory bail with a stroke of pen by a non-speaking order. 22. Supreme Court in Puran v. Rambilas and anr. (supra), while referring to the advice given in Niranjan Singh's case (supra) has observed in para 7 of the judgment that `Giving reasons is different from discussing merits or demerits. At the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken'. The Supreme Court has further observed that `that did not mean that whilst granting bail some reasons for prima facie concluding why bail was granted need not have to be indicated.' 23. Contextually, it is useful to refer to Gajanand Agarwal v. State of Orrisa and Ors. 2007 AIR SCW 2857 and Lokesh Singh v. State of U.P. AIR 2009 SC 94 . Supreme Court in these cases has reiterated that while dealing with an application for bail, "there is need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence. 24. Supreme Court in Siddharam Satlingappa Mhethe's case (supra) has opened the judgment with the observation: "3. The society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State. 24. Supreme Court in Siddharam Satlingappa Mhethe's case (supra) has opened the judgment with the observation: "3. The society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely sanctity of individual liberty and the interest of the society. The Law of bails dovetails two conflicting interests namely on the one hand, the requirement of shielding the society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand absolute adherence of the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty." 25. Grant of bail is discretion of a court but this discretionary jurisdiction is to be exercised in judicious manner and not casually or as a matter of course. 26. The court while allowing a bail application should be satisfied that there is a prima facie case for bail and such satisfaction must get reflected from the order granting bail. While avoiding discussion on merits or demerits of a case, the order granting bail must show reasons as to how case has been found fit for granting bail to the accused. Any order dehors such reasons depicts non-application of mind. A reference to facts and salient features of a given case is inevitable but care must be taken to safeguard against prejudicing the case at the time of trial. It must be paramount in the mind of a judge dealing with a bail application, particularly where an accused is alleged to have committed serious offences, that he is entrusted with solemn task of maintaining perfect balance between the sanctity of individual liberty and the interest of the society. This trust must be executed carefully and with dedication and should appear to have been so executed. 27. Impugned order, that is, order dated 17.09.2012, whereby private respondents have been granted anticipatory bail, de hors mention, much less reasons, indicating prima facie satisfaction of the learned Judge that the case was fit for granting absolute anticipatory bail to the respondents. The order depicts to have been passed as a matter of course without application of mind. Such an order cannot escape attention of and intervention by this Court. 28. The order depicts to have been passed as a matter of course without application of mind. Such an order cannot escape attention of and intervention by this Court. 28. It is indisputable that different criteria are to be adopted while granting bail at the initial stage and cancellation of bail already granted. It is now well settled that very cogent and overwhelming circumstances are necessary for an order directing cancellation of bail already granted (Dolatram v. State of Haryana (1995) 1 SCC 349 ). Nevertheless, there is no bar in interfering with and setting aside an order granting bail if the order palpably has been passed without application of mind and recording reasons indicating that case is fit for grant of bail. Such an order would be unjustified and illegal and can be set aside, notwithstanding whether any other ground for cancelling bail is made out. In Puran v. Rambilas (supra), Supreme Court has observed: "10. Further, it is to be kept in mind that the concept of setting aside the unjustified, illegal or perverse order is totally different from the concept of cancelling the bail on the ground that accused has mis-conducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in Gurucharan Singh v. State (Delhi Admn.), reported in AIR 1978 SC 179 : (1978 Cri LJ 129). In that case the Court observed as under (para 16): "If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under S. 439 (2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation." 29. In the result, the impugned order dated 17.09.2012 passed by learned 2nd Additional Sessions Judge, Srinagar, whereby respondents 3 to 7 have been granted absolute anticipatory bail, is set aside. In the result, the impugned order dated 17.09.2012 passed by learned 2nd Additional Sessions Judge, Srinagar, whereby respondents 3 to 7 have been granted absolute anticipatory bail, is set aside. However, these respondents shall continue on the interim anticipatory bail pursuant to initial order dated 26.04.2012 passed by the learned Court. Leaned Court shall, dispose of the application afresh. It is, however, made clear that the learned Court shall not be influenced by whatever said herein above. It is made clear that the impugned order has been set aside simply for the reason that it has been passed without application of mind and sans reasons that the case was fit for anticipatory bail. 30. Record of the court below be remitted back along with copy of this order, where both sides shall cause their appearance on Friday of the week following next. In case the said Friday is holiday, the date of appearance shall be the next working day thereafter.