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2014 DIGILAW 59 (JK)

Saleem Beigh v. State of J & K

2014-02-13

JANAK RAJ KOTWAL

body2014
JUDGMENT : Janak Raj Kotwal, J. 1. This is a Bail Application under Section 498 of the Cr.P.C. Heard. I have perused the record. 2. Background facts necessary for disposal of this application may be stated, thus: 3. Petitioner, (accused) at the relevant time was posted as the Superintendent of the Central Jail, Jammu. He along with the other co-accused is facing trial in the Court of learned Second Add. Sessions Judge, Jammu for offences under Sections 120-B, 115 and 201 RPC as an under trial on the basis of a supplementary charge sheet arising in FIR No. 164/2010 of Police Station, Channi Himmat, Jammu. Prosecution case, briefly, is that in the month of December, 2009 a conspiracy to liquidate a prosecution witness, namely, Sudershan Sing Wazir, of a case called as 'Amandeep murder case' was hatched by an under trial accused of that case, namely, Nagar Singh with one Summit Choudhary @ Sunny Baba in Central Jail, Jammu where they were lodged. This conspiracy seems to be the subject matter of main charge sheet in FIR No. 164/2010. Later in furtherance of the same conspiracy, in the month of August 2010, at a place outside the Jail, the petitioner and co-accused, Surinder Kumar and Summit Choudhary @ Sunney Babu had held a meeting in which in presence of the petitioner 'Suppary' money was paid to Summit Choudhary. Petitioner thus, came to be arrested and supplementary charge sheet was lodged. 4. Petitioner's earlier two applications for bail have been dismissed by the trial Court. First bail application was dismissed on 24.2.2012 and after that petitioner approached this court in B.A. No. 66 of 2012, which, according to the petitioner, was dismissed on the ground that one of the prosecution witnesses, namely, Ranjit Singh, was yet to be examined. In the second bail application, which was filed on 16.11.2012, bail was sought only on the ground that the whole evidence collected against the petitioner has been recorded and there is nothing in the said evidence against the petitioner. It was contended that witnesses, namely, Harmeet Singh, Sunil Kumar, Munish Nanda and Ranjit Singh, cited as witnesses to the meeting held in the month of August, 2010 have been examined but there is nothing against the petitioner in their depositions. It was contended that witnesses, namely, Harmeet Singh, Sunil Kumar, Munish Nanda and Ranjit Singh, cited as witnesses to the meeting held in the month of August, 2010 have been examined but there is nothing against the petitioner in their depositions. Respondents-State in their objections to the said application, whilst admitting that the five witnesses may not have supported the persecution version, had taken the stand that other material witnesses were yet to be examined to extract the truth and that the conviction in a case can be made even on the basis of the evidence of single witness. It was besides alleged that if released on bail petitioner shall influence and temper with the evidence. Learned trial court, however, rejected the prayer for bail vide order dated 21.1.2013. Hence this application primarily on the same ground. 5. Mr. R.S. Thakur, learned Senior Advocate, appearing for the petitioner, while reading the evidence rendered by P.Ws. Harmeet Singh, Sunil Kumar and Munish Kumar from the copies of their depositions, would say that not only they have exonerated the petitioner from his participation in the alleged meeting but have also exposed the falsehood of the entire prosecution version. Mr. Thakur thus submitted that to say that petitioner is involved in commission of any offence and not to release him on bail would be unreasonable curtailment of his fundamental right to liberty and submitted that petitioner is entitled to be released on bail. 6. Mr. Gagan Basatra, learned AAG, on the other hand, firstly, questioned the maintainability of this bail application contending that, bail having been refused by the trial court, subsequent bail application cannot be heard unless some change in circumstances is pleaded and shown. While not disputing that most of the eye witnesses to the alleged meeting have not supported the prosecution case, Mr. Basotra submitted that most of the evidence is yet to be recorded. Besides, Mr. Basotra also raised objection on the basis of gravity of accusation and severity of punishment. 7. Section 498 Cr.P.C. gives concurrent discretionary jurisdiction to the High Court and Court of Session to release on bail a person accused of non bailable offence. Contention is not sustainable that once the Sessions Judge rejects a bail application under Section 498, subsequent application before the High court under that section would not lie unless there is a change in circumstances. Contention is not sustainable that once the Sessions Judge rejects a bail application under Section 498, subsequent application before the High court under that section would not lie unless there is a change in circumstances. No such bar is clear or evident in Section 498. Supreme Court in Ram Pratap Yadav v. Mitra Sen Yadav & Anr. 2002 (8) Supreme 266 , has held that prayer for bail having been rejected by the Sessions Court, although the High Court while exercising its jurisdiction under Section 439 Cr.P.C. (S. 498 of the State Code) is not acting as a court of appeal or court of revision over the order of the Sessions Court, nevertheless, the High Court should keep in mind, while hearing the application for bail, the factum of the prayer having been rejected by the Sessions Court and the reasons therefore expressly set out in the order of the Sessions Court. Supreme Court has further held that independently of the order of rejection passed by the Sessions. Court, the High Court may grant bail to an accused person, yet it would be sound exercise of discretionary jurisdiction by the High Court if the order of the High Court reflects that the High Court had in mind the reasons assigned by the Sessions Court in refusing bail. 8. That the bail to the petitioner has been refused by the trial Court (Second Add. Sessions Judge), it is important to refer to and quote the operative part of the order passed by the trial Court: "Claim put forth for grant of bail, seems to be only recording of the statement of P.W. Ranjit Singh. However, Ld. APP opposed the present bail petition of the accused-petitioner also on other grounds including the one that this court has not to appreciate the evidence led by the prosecution, so far. Moreover, resistance is put by him that material witnesses are yet to be examined by the prosecution. I am in agreement with the Ld. APP that this court has not to comment upon the evidentiary value of the prosecution witnesses, so far recorded by the prosecution. However, on going through the statement of P.R. Ranjit Singh, it can safely be said that the accused-petitioner is not entitled to bail at this stage. I am in agreement with the Ld. APP that this court has not to comment upon the evidentiary value of the prosecution witnesses, so far recorded by the prosecution. However, on going through the statement of P.R. Ranjit Singh, it can safely be said that the accused-petitioner is not entitled to bail at this stage. Moreover, it is not disputed that prosecution has yet to record statements of other material witnesses, relating to recovery of 'supary' paid to the alleged contract killer, another accused, namely Sumit Choudhary @ Sunney Baba for eliminating the P.W. Sudershan Singh Wazir of this case and who was assisting the prosecution in Amandeep Murder case." 9. The reasons recorded by the trial Court in refusing the bail on their bare reading would show that the learned Judge has rather shown in apt approach in exercising the discretionary jurisdiction of the court and dealing with delicate issue involving individual liberty on one hand and a larger interest of society on the other. Whereas the nature of accusation, severity of punishment, apprehension of tempering with the evidence or even the status and position of the accused at the time of commission of offence are some of the important criteria in determination of a prayer for bail, the nature of the evidence against the accused proposed by the investigator/prosecution, is nevertheless, important. Court should neither grant nor refuse bail without having due regard to the evidence against the accused. Accusation/severity of punishment howsoever grave, nature of evidence cannot be given less importance because it is the evidence that can unveil the shield of innocence, which law has provided to a person accused of offence. 10. To take a view that in considering the application for bail, court has not to appreciate the evidentiary value of prosecution witnesses is not a correct view in law. To take such a view is to avoid consideration of the evidence against the accused, which though is an important factor in determination of the prayer for bail. The bail court rather is duty bound to accord consideration, besides other factors, to the evidence produced/collected against the accused and expressly set out reasons for granting or refusing bail. This duty becomes more objective and meaningful when the bail is sought during trial because by that time the entire proposed evidence is before the court and some of it might have been recorded on oath. This duty becomes more objective and meaningful when the bail is sought during trial because by that time the entire proposed evidence is before the court and some of it might have been recorded on oath. Court has the benefit of comparing the evidence and considering the recorded evidence in context of the evidence proposed to be recorded and also had the occasion of noticing the demeanour of the witnesses examined by that time 11. What is, however, required of the bail court and is important is that while passing orders on bail applications the court, 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 . But that would not mean that courts can grant or refuse bail with a stroke of pen by a non-speaking order. 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. 12. Contextually, it is useful to refer to Gajanand Agarwal v. State of Orissa and Ors. 2007 AIR SCW 2837 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. 13. Grant or refusal of bail is discretion of a court but this discretionary jurisdiction is to be exercised with great care and not casually and in cavalier manner. Order passed by the bail court must expressly indicate reasons for granting or refusing bail. A reference to facts and evidence proposed/recorded is inevitable but care must be taken to safeguard against prejudicing the case at the time of trial. Order passed by the bail court must expressly indicate reasons for granting or refusing bail. A reference to facts and evidence proposed/recorded 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 discharging the solemn duty of balancing the sanctity of individual liberty enshrined under the Constitution on one hand and interest of the society and public loath against crime on the other. Supreme Court in Siddharam Satlingappa Mhethe's case (2010) 8 Supreme 353 has observed; "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." 14. The petitioner of this case at the relevant time was posted as Superintendent of the jail in which the alleged criminal conspiracy for liquidating a prosecution witness of a case had originated and at a subsequent stage, he, at some place outside the jail, had allegedly participated in a meeting held in furtherance of the same conspiracy in which 'suppary' money was paid. These might be the factors, which in totality with all the relevant factors, weigh in favour of not releasing him on bail. But the nature and quality of evidence to prove his role and participation in the conspiracy cannot be ignored or given less weightage while considering his prayer for release on bail. Scrutiny of evidence needs to be done keeping in mind the distinction between the standard to be adopting for evaluating the evidence for proving the charge and that for examining the evidence for limited purpose of drawing prima facie opinion for releasing the accused on bail. Scrutiny of evidence needs to be done keeping in mind the distinction between the standard to be adopting for evaluating the evidence for proving the charge and that for examining the evidence for limited purpose of drawing prima facie opinion for releasing the accused on bail. It needs to be determined whether the evidence recorded by the trial court in itself and as compared to the evidence proposed to be recorded may lead one to believe that accused is guilty of the offence of conspiracy as alleged by the prosecution. 15. Order passed by the learned that court does not indicate that the court had scrutinized the depositions of the witnesses, who according to the court were the witnesses to the alleged meeting in which the petitioner had participated, much less indicates the reasons for refusing bail, having regard to the said evidence. To say that accused is not entitled to bail on the basis of evidence of one witness is too scanty. Scrutiny of entire evidence for limited purpose of recording reasons to believe that accused is guilty of the offence of conspiracy to liquidate a witness of a case, as alleged by the prosecution, is required to be done. If such a belief is not possible from the evidence, accused would be entitled to bail. Such scrutiny though can be done by this court but it is apt and essential that this job is left to the trial court, which is seized of the entire record and is in position to compare entire evidence and material. 16. For all that said and discussed above, this bail application is disposed of providing that, dismissal of earlier bail application by the trial court notwithstanding, petitioner may apply afresh and the trial court shall accord consideration to the application having regard to the evidence recorded/proposed to be recorded and dispose of the application in light of the observations made above by a speaking order indicating the reasons for granting or refusing the bail. A copy of this order be sent to the trial court for information.