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2013 DIGILAW 464 (JK)

Nagar Singh v. State Of J&K

2013-08-08

TASHI RABSTAN

body2013
1. The petitioner has invoked the jurisdiction of this Court in terms of Section 498 of the Code of Criminal Procedure (for short, Cr.P.C.) for grant of bail in case, titled as State v. Jaggar Singh and others, in FIR No. 164 of 2010 registered with Police Station, Channi Himmat, Jammu under Sections 307/115/120-B/201/34 of Ranbir Penal Code (for short, R.P.C.) read with Sections 3/25 and 7/25 Arms Act. 2. The facts in brief as emerges from the police challan are that on 21.11.2010 on the basis of reliable information that alleged accused persons, namely, Rakesh Kumar alias Giri s/o Jeet Lal r/o Ward No. 4, R.S.Pura and Yudhvir Singh alias Bablu s/o Aya Singh r/o Agra Chack R.S.Pura, who were wanted in many cases in different Police Stations, were present in Dak Bunglow Maralian, a special police team was constituted under the supervision of Inspector Sunil Singh, SHO, Police Station, Mirah Sahib to nab these criminals. Accordingly, SHO Miran Sahib along with his team rushed to Dak Bunglow Maralian, but in the meanwhile, the accused persons fled away towards Jammu city. The police came to Jammu in search of the accused persons. When they reached near Satyam Resorts Channi Himmat, said Rakesh Kumar, Yudhvir Singh and one Sumit Choudhary alias Sunny alias Saleem Sheikh s/o Romesh Baba r/o Nai Basti came from Marble Market on Pulsar Motorcycle, they were signalled to stop, however, accused, Rakesh Kumar and Sumit Choudhary ignoring the warning started indiscriminate firing upon the police party with criminal intention to kill the police personnel. Meanwhile, Yudhvir Singh also stopped the motorcycle and he too started firing on the police party. Police also retaliated in self defence. During exchange of firing, accused Rakesh Kumar and Yudhvir Singh received injuries, whereas Sumit Choudhary succeeded in giving dodge to the police and fled away from the place of occurrence. Police recovered arms and ammunition from their possession and they were shifted to GMC for treatment where Rakesh Kumar succumbed to his injuries. Accordingly, a case was registered at Police Station, Channi Himmat, Jammu and the investigation was taken up by Inspector Karanjeet Singh, the then SHO, P/S Channi Himmat, Jammu. During the course of investigation, Investigating Officer visited the spot, prepared the site plan and completed other legal formalities. The statements of prosecution witnesses were also recorded by the Investigating Officer. 3. Accordingly, a case was registered at Police Station, Channi Himmat, Jammu and the investigation was taken up by Inspector Karanjeet Singh, the then SHO, P/S Channi Himmat, Jammu. During the course of investigation, Investigating Officer visited the spot, prepared the site plan and completed other legal formalities. The statements of prosecution witnesses were also recorded by the Investigating Officer. 3. During investigation, it came to light that one Jaggar Singh had hatched a criminal conspiracy to eliminate one S. Sudershan Singh Wazir (who is following the murder case of his nephew Amandeep Singh) with accused Yudhvir Singh, Rakesh Kumar, Sumit Choudhary, Akram Khan, Jatinder Kumar, Suresh Kumar alias Tunda and Surinder Singh alias Shanti. A sum of Rs. 10 lac was fixed as `Supari' by accused Jaggar Singh payable to aforesaid other accused persons for carrying out the aforesaid object of criminal conspiracy. 4. On the basis of investigation conducted, challan for commission of offences punishable under Sections 307, 34, 129-B RPC, 3/25 Arms Act was produced in the Court of law on 29.01.2011. Since accused Sumit Choudhary and Surinder Singh were absconding, accordingly, proceedings under Section 512 Cr.P.C came to be initiated against them. Meanwhile Sumit Choudhary came to be arrested on 15.03.2011 in another case in FIR No. 44/2011 registered with Police Station, Jhajjar Kotli under Section 3/25 Arms Act. Thereafter, his custody was got transferred to Police Station Channi Himmat, Jammu for investigation in FIR No. 164 of 2010. 5. As per prosecution story during detailed questioning and investigation, it was revealed that when Sumit Choudhary was lodged in Kot Bhalwal Jail and was about to get bail, he was introduced by one Surinder Kumar (a jail employee) with Nagar Singh (petitioner herein), lodged there in Amandeep Singh murder case. Jail Superintendent Salim Beigh was also in constant contact with the petitioner. Petitioner entrusted the job of elimination of S.Sudershan Singh Wazir to Sumit Choudhary details of which were to be provided by said Surinder Kumar PSO and henchman of Jail Superintendent. Accordingly, on the release of Sumit Choudhary, Surinder Kumar PSO fixed a meeting with him at the shop of his brother, namely, Sunil Kumar at Pacca Danga, Jammu where the plan was hatched. Accordingly, on the release of Sumit Choudhary, Surinder Kumar PSO fixed a meeting with him at the shop of his brother, namely, Sunil Kumar at Pacca Danga, Jammu where the plan was hatched. During investigation, it was also revealed that Sumit Choudhary in order to accomplish the evil design, procured illegal weapons from Mumbai and Banaras, also brought some four `supari killers' from Mumbai, besides took assistance of local criminals Rakesh Giri and Yudhvir Singh in the plot. On 21.11.2010, they were on the move to eliminate said S. Sudershan Singh Wazir when their ill-design was foiled by Police when they were challenged by the Police near Satyam Resorts Channi Himmat. 6. After completion of requisite legal formalities, supplementary charge-sheet was produced before the court of law by the Investigating Officer. The trial Court after having found that a prima facie case has been made out against the petitioner and other accused, charge-sheeted them for the commission of offence punishable under Sections 115, 120-B and 34 RPC. 7. The petitioner applied for bail before the trial Court, which came to be rejected vide order dated 10.01.2012, constraining the petitioner to file the instant bail application on the following grounds:- 1. That the petitioner has been kept under judicial custody since long on the false and frivolous charges. 2. That the witnesses examined by the prosecution to substantiate the charges against the petitioner have not supported the prosecution case and the petitioner is being kept under custody without there being any evidence on record to connect the petitioner with the alleged crime. 3. That having regard to the evidence brought on the file, there is no reasonable ground for believing that the accused is guilty of any offence alleged in the charge sheet. 4. That the trial is proceeding on a snail's pace and unless the petitioner is enlarged on bail, he may have to suffer incarceration without there being his involvement in the alleged offence. 5. That the petitioner is an innocent law abiding person and has got deep roots in the society and commands respect. He is one of the leading income tax payers of the State of Jammu and Kashmir, so there is no other impediment in admitting him to bail. 6. That the long incarceration of the petitioner has disabled him to take effective steps in his defence. 8. He is one of the leading income tax payers of the State of Jammu and Kashmir, so there is no other impediment in admitting him to bail. 6. That the long incarceration of the petitioner has disabled him to take effective steps in his defence. 8. The respondents have filed objections and resisted the petition on the ground that since trial is in progress, therefore, it would be premature to grant bail to the petitioner at this stage, that too in such a serious offence. 9. I have heard learned counsel for the parties and perused the record. 10. While considering the bail application, what is required to be seen is, the prima-facie involvement of a particular accused connecting him with the commission of alleged offence and its gravity or seriousness. Chances of tampering with evidence can also be a very valid ground for rejecting or accepting the bail application and at the same time, the Court has also to ensure that there should not be any hindrance in free, fair and just trial. 11. It is contended by learned counsel for the petitioner that petitioner has been charged for the commission of alleged offence punishable under Sections 115 and 120-B RPC. In order to establish his complicity with the alleged crime, the Special Investigating Team, during investigation of the case in terms of sub-section (8) of Section 173 of the Code of Criminal Procedure examined four persons as material witnesses in terms of Section 164-A Cr.P.C. These material witnesses are Sunil Kumar son of Ram Lal, Harmeet Singh son of Kartar Singh, Ranjit Singh son of Nahar Singh and Munish Kumar Nanda son of late Kamal Nanda. As per challan, there are 25 witnesses. It is further contended that in view of the aforesaid alleged fresh evidence, Special Investigating Team (for short, SIT) produced a supplementary challan against the petitioner and few others. It is also contended that once the initial challan was pending trial in which the petitioner was not arraigned as an accused, the Investigating Agency was under legal obligation to collect further evidence in the case after obtaining prior permission from the trial Court. However, this has not been done in the instant case. It is also contended that all the four witnesses examined by the trial Court, so far, have not supported the prosecution case at all. However, this has not been done in the instant case. It is also contended that all the four witnesses examined by the trial Court, so far, have not supported the prosecution case at all. More so, the allegations against the alleged accused do not attract the rigors of provisions of Section 497 Cr.P.C. It was further argued that the petitioner-accused may be admitted to bail as the allegations against him do not prima-facie prove his involvement in the instant case. 12. Mrs. Wattali, learned counsel for the State opposed the bail application on the following grounds: (i) That the petitioner is facing trial and the trial Court on consideration of the allegations levelled has prima facie found commission of offences under Sections 115,120-B and 34 RPC against the petitioner. Some of the important and material witnesses are yet to be examined, as such, the accused is not entitled to bail at this stage. (ii) That since the petitioner had already preferred a bail application before the learned 2nd Additional Sessions Judge, Jammu, which came to be dismissed by a detailed and well reasoned order dated 10.01.2013, in absence of any new or fresh grounds, it is not open for the Court to reconsider the same material and overrule the findings of the trial Court. There is no scope for the petitioner to raise the same points again and, therefore, this application needs to be rejected at the threshold. (iii) That co-accused in the same FIR No. 164/2010 had also preferred bail application, which came to be rejected by this Court vide order dated 28.09.2012. (iv) That this court should not lose sight of the fact that the case FIR No. 164 of 2010 is an off shoot of Amandeep Singh murder case in which son of petitioner, namely, Jatinder Singh is the main accused, who is presently facing trial in the said case. In case, petitioner is enlarged on bail, there is every likelihood and apprehension that he will make all efforts to tamper with the evidence not only against himself, but, also his son. (v) That since the petitioner is under trial prisoner, all the available medical support/help is being provided to him and he is being regularly medically examined and treated by specialists/experts. (v) That since the petitioner is under trial prisoner, all the available medical support/help is being provided to him and he is being regularly medically examined and treated by specialists/experts. (vi) That investigation in the instant case has been carried out in a professional manner without any bias, and unimpeachable evidence for eliminating the witnesses in Amandeep Singh's murder case has been collected against the petitioner and others, as such, his alleged act is heinous and grave in nature. (vii) That the petitioner is also facing trial in two more cases, one Amandeep Singh murder case and another Chopra murder case, which reflect his conduct. (viii) That in case concession of bail is extended to the petitioner at this stage, he being a high profile person and wielding immense influence would abuse the liberty to subvert justice by threatening the prosecution witnesses and thereby thwarting the course of justice. 13. Mrs. Wattali, learned counsel for the State further submits that it is in that backdrop that petitioner hatched a conspiracy, viz, to eliminate S. Sudershan Singh Wazir, therefore, looking to the gravity and seriousness of the offence, in which petitioner is allegedly involved, he does not deserve any leniency by the Court. It is, however, pleaded that since the trial is going on, and many prosecution witnesses are yet to be examined, therefore, instant petition being premature one is liable to be rejected. 14. Mr. Kohli, learned counsel for Intervenor S.Sudershan Singh Wazir, who was allowed to intervene vide order dated 12.07.2013, while opposing the bail plea of the petitioner has submitted that in pursuance to FIR No. 164 of 2010 under Section 307,34 and 120-B RPC read with Sections 3/25 and 7/25 Arms Act, challan was produced against certain accused, but, the petitioner was not included as an accused person in the said challan. Thereafter, on the basis of statements made by Sumit Choudhary and Surinder Singh, petitioner was included as one of the accused in the supplementary challan. The charges were also framed against the petitioner under Sections 115 and 120-B RPC. Mr. Kohli almost reiterated the arguments of Mrs. Wattali in toto and in support of his contention relied upon the judgment of the Apex Court in case titled as State of U.P. through CBI v. Amarmani Tripathi, 2005 (8) SCC 21 . 15. The charges were also framed against the petitioner under Sections 115 and 120-B RPC. Mr. Kohli almost reiterated the arguments of Mrs. Wattali in toto and in support of his contention relied upon the judgment of the Apex Court in case titled as State of U.P. through CBI v. Amarmani Tripathi, 2005 (8) SCC 21 . 15. The principles which generally govern the grant of bail are relatable to following things:- i/ seriousness of the allegations, severity of punishment, the character of evidence on which the charge is proposed to be sustained, possibility of tampering and intimidating the witnesses and chances of running away from the trial. ii/ false implication of the accused, allegations leveled not believable and wrecking vengeance for political or business reasons. 16. The above principles are required to be kept in mind while exercising powers under Section 498 Cr.P.C. It is also to be noted that at the stage of considering the application for grant of bail, the Court has only to go into the limited question as to whether a prima-facie case is established against the accused. It cannot go into the evidentiary value, creditability and reliability of the witnesses. However, while examining the bail plea of the accused, the circumstances under which crime is alleged to have been committed, the character and behaviour of the accused person is also to be examined. While vague allegations that the accused will tamper with the evidence without there being any supportive material may not be a ground to refuse bail, however, if the accused is of such a character that his mere presence at large would intimidate the witnesses or if there is material to show that he will abuse his liberty to subvert justice or would tamper with the evidence, then bail may be refused. My view is fortified by a judgment of the Apex Court in the case titled as State of U.P. through CBI v. Amarmani Tripathi, reported in (2005) 8 SCC 21 . My view is fortified by a judgment of the Apex Court in the case titled as State of U.P. through CBI v. Amarmani Tripathi, reported in (2005) 8 SCC 21 . What has been observed in this regard in paragraph 18 of the judgment may be noticed as under:- "It is well settled that the matters to be considered in application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail (see Prahlad Singh Bhati v. NCT, Delhi and Gurcharan Singh v. State Delhi Admn.). While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan.(SCC pp.535-36, para 11) "11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non application of mind. Any order devoid of such reasons would suffer from non application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge (See Ram Govind Upadhyay v. Sudarshan Singh and Puran v. Rambilas)." 17. In the present case, it be seen that the accused as alleged by the prosecution was involved in hatching of a criminal conspiracy alongwith other accused for eliminating one S.Sudershan Singh Wazir, who is following the murder case of his nephew, namely, Amandeep Singh in which son of petitioner is prime accused. Therefore, this conduct of the accused would be relevant for the purpose of judging his character at this stage for the purpose of grant of bail. The contentions raised by the petitioner relate to the merits of the case and evaluation of evidence. These, however, are the matters which perhaps, cannot be appreciated at this stage while the trial is still on. For the purpose of bail, what is required to be seen is as to whether prima-facie there are circumstances which connect the accused with the crime. At this stage, this Court, cannot, be asked to adjudicate the issues relating to the merits of the evidence. However, the petitioner would be well within his rights to raise all these issues before the trial Court. 18. Be that as it may, the only issue which is required to be considered at this stage is whether the petitioner in view of the above circumstances, is entitled to bail. 19. However, the petitioner would be well within his rights to raise all these issues before the trial Court. 18. Be that as it may, the only issue which is required to be considered at this stage is whether the petitioner in view of the above circumstances, is entitled to bail. 19. The Court while granting/refusing bail has to take into consideration the following factors:- (i) Whether there is or not reasonable grounds for believing that the applicant/accused is guilty of the offences; (ii) The nature and gravity of offences; (iii) The severity and degree of the punishment prescribed; (iv) The chances of the applicant/accused absconding, if released on bail; (v) The danger of the evidence being tampered with; (vi) Larger interest of the society; (vii) Character of the evidence against the accused; (viii) The danger of the offence being repeated or continued; and (ix) Hindrance to have free, fair and just trial 20. While dealing with an application for grant of bail, there should be sufficient reasons to indicate in the order for prima-facie concluding as to why the bail should be granted where the accused is charged of with serious offence. The purpose of refusing to grant bail is to ensure presence of accused during the trial and to further ensure free and fair trial, which may be initiated by intimidation of witnesses by the accused, if set at large during the course of trial. The underlying principle is to ensure that the accused faces the trial which is free and fair. 21. In the instant case, the alleged allegation against the accused is hatching of a criminal conspiracy to kill one S.Sudershan Singh Wazir, who is assisting the prosecution in the case relating to murder of his nephew and is also a prosecution witness in the said case. It is alleged that the criminality of the petitioner can be gauged from the fact that he while being in Jail was able to influence even the Superintendent of Kote Bhalwal Jail and his PSO, who are also facing trial in the instant FIR, i.e., FIR No. 164 of 2010. It is alleged that the criminality of the petitioner can be gauged from the fact that he while being in Jail was able to influence even the Superintendent of Kote Bhalwal Jail and his PSO, who are also facing trial in the instant FIR, i.e., FIR No. 164 of 2010. Argument of learned counsel for the petitioner that witnesses examined have not supported the prosecution case need not to be gone into at this stage because consideration and appreciation of evidence available on record would certainly prejudice the case of prosecution when other material and important witnesses are yet to be examined. 22. Further, out of 25 prosecution witnesses listed in the charge sheet, only four witnesses have been examined by the prosecution. Important and material prosecution witnesses are yet to be examined and it would be premature for the court, to frame any opinion whether the petitioner-accused is guilty of the offence or not. More so, no developments have taken place in the trial of the petitioner since the bail application was rejected by the trial Court and there is no new ground urged in the bail application which could persuade the Court to take a view other than the one taken by the trial Court. 23. Therefore, as discussed hereinabove, I am of the considered view that severity and degree of punishment would be at higher side if the allegation levelled against the petitioner-accused is proved to be true. Since the trial in this case is at its infancy, therefore, in my view, it would be improper and premature to admit the petitioner accused to bail at this stage. Further, the petitioner being a high profile, in case concession of bail is extended to him at this stage, there is every likelihood that he may threaten or win over the prosecution witnesses and thereby thwarting the course of justice. 24. No doubt, Mr. Kotwal, learned counsel for the petitioner-accused has raised many issues on facts and law, but, the same relate to the merits of the prosecution case and its admissibility in law, which cannot be dealt with in detail at this stage, lest any expression of opinion on merits can prejudice the mind of the trial Court. I, therefore, refrain myself from commenting upon the merits of the case while deciding this bail application. 25. I, therefore, refrain myself from commenting upon the merits of the case while deciding this bail application. 25. Learned counsel for the petitioner has also relied upon the judgment of Apex Court in case Sanjay Chandra v. CBI reported in 2011 AIOL 823. I have perused the same and in my view the facts and gravity of offence in both the cases are altogether different. In the said case, prime alleged offence against the accused persons was causing huge financial loss to the State exchequer, but, in the present case main allegation against the petitioner-accused is hatching of a criminal conspiracy involving the life of a person, namely. S.Sudershan Singh Wazir, who was also one of the material prosecution witnesses in another case, where the petitioner and his son are the main accused for causing murder of nephew of S.Sudershan Singh Wazir. Moreover, the trial in FIR No. 164 of 2010 is still at its infancy, therefore, judgment relied upon by Mr. Kotwal, learned counsel for the petitioner-accused does not bear any significance. 26. Therefore, in totality of the circumstances and for the reasons discussed above, the bail application is not maintainable at this stage. Resultantly, the same is dismissed. However, keeping in view the fact that the petitioner has a right of speedy trial, learned trial Court is directed to wrap up the trial of this case at the earliest, by taking up this case twice in a fortnight. Prosecution agency is directed to ensure the presence of the witnesses on each and every date of hearing before the trial Court. It is made clear that any observation made hereinabove shall not prejudice the case of the petitioner in any way. However, the petitioner is at liberty to make fresh bail application before the trial court, if so advised, at an appropriate stage. 27. Registry to convey the order to the Court concerned forthwith.