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2017 DIGILAW 705 (JK)

Kumad Kumar Mandal v. State of J&K

2017-08-22

JANAK RAJ KOTWAL

body2017
JUDGMENT : 1. During investigation in FIR No. 138/2014 of Police Station, Leh under sections 366-A, 302, 376, 202, 212, 342, 176 and 201 RPC, petitioner, Kumad Kumar Mandal, turned approver and was tendered pardon on the condition of his making full and true discloser of the whole circumstances in his knowledge relating to the commission of offence. He is in custody ever since his arrest during investigation of the case. 2. Sub-section (3) of section 337 Cr. P. C. provides that a person, who has accepted tender of pardon under that section shall be detained in custody until the termination of the trial, unless he is already on bail. Such a person cannot be released on bail. The petitioner has, therefore, invoked inherent jurisdiction of this Court under section 561-A Cr.P.C. to seek his release on bail. 3. The charge-sheet filed by the police in the court of learned Sessions Judge, Leh after investigation in FIR No. 138/2014 (supra) of Police Station, Leh discloses a horrendous incident of rape and murder having taken place in village, Thiksay, Leh on 26.11.2014. The prosecution case, briefly stated, is that the accused, Molvi Srajudin, a resident of the State of Bihar, was taken to that village from Delhi by an elder of the village and was appointed as preacher in the local mosque. The accused is alleged to have committed rape on a minor school going girl of the village, committed her murder after commission of rape and after that to have thrown her dead body in a canal. The petitioner during those days was working in Delhi. The role attributed to the petitioner is that when the relatives of the deceased were busy in search of the deceased, the accused on 27.11.2014 contacted him telephonically and told him that a colleague of him has kidnapped the daughter of his employer and taken her to Delhi for contracting marriage with her. He told him also that his employer was much worried and requested him to call the mother of the girl through her cell No. 9622968390 and tell her that he and her daughter have contracted marriage. Her daughter is well with him and she should not worry. The petitioner after his initial refusal acceded to the persuasion of the accused and gave information to the mother of the girl in a manner as advised by the accused. Her daughter is well with him and she should not worry. The petitioner after his initial refusal acceded to the persuasion of the accused and gave information to the mother of the girl in a manner as advised by the accused. The information given by the petitioner caused disruption in investigation of the case. The Investigating Officer traced the petitioner during the investigation. He made clean breast of the facts which were known to him and accepted the tender of pardon made to him. His Statement was recorded. 4. It is not denied that during trial of the case statement of the petitioner as prosecution witness has been recorded on 29.08.2015, a copy of this statement has been produced by the petitioner. It is also not denied that the petitioner has supported the prosecution case and did not commit any breach of the conditions of the pardon tendered to him. 5. Respondents-State have opposed petitioner’s release on bail mainly on the basis of the legal position provided under Sub section (3) of section 337 Cr. P.C. Learned AAG, Mr. L. K. Moza, submitted that there is complete Bar against grant of bail to the approver till conclusion of the trial so bail cannot be granted even in exercise of inherent power of this Court. 6. Learned counsel for the petitioner, while not disputing the statutory position in regard to the detention of the approver till termination of the trial, submitted that in appropriate cases approvers have been released on bail in exercise of inherent power of the High Court. Learned counsel relied upon two judgments of co-ordinate Benches of this Court in Mohammad. Sultan Mir vs. State of J&K, 2012 (3) SLJ 897 and Mohd. Lateef Deedar vs. State and ors. 2011 (2) JKJ 373 . Learned counsel argued that the petitioner at no stage was involved in the commission of any offence much less in the incident involving the commission of rape and murder of the prosecutrix. The role of petitioner was peripheral, as having been influenced by the accused, who was known to him, he allegedly had given a wrong information to the mother of the deceased. Learned counsel submitted further that petitioner has voluntarily offered to assist the investigators by giving important information and stood to his ground, while making statement as prosecution witness at trial of the case. 7. Learned counsel submitted further that petitioner has voluntarily offered to assist the investigators by giving important information and stood to his ground, while making statement as prosecution witness at trial of the case. 7. Legal position is clear too and no more res integra. There is complete Bar to the release of the approver until the termination of the trial, if the approver had not been released on bail prior to the tender of pardon to him. However, in appropriate cases, having regard to the facts and circumstances of the case, an approver can be released on bail by the High court in exercise of inherent powers under section 561-A Cr. P.C. (section 482 Central Code). 8. It is not the prosecution case that the petitioner was involved in any conspiracy of commission of the offence allegedly committed by the accused. The role alleged to have been played by the petitioner is that on the request of the accused, he had given false telephonic information to the mother of the deceased that he has married with the deceased and both of them were in Delhi. It is not the prosecution case nor does it appear from the charge-sheet filed against the accused that the petitioner was aware of the commission of the offence, that is, rape or murder of the deceased by the accused at the time when he acceded to his persuasion to give false information to the mother of the deceased. It is also noticed that after his arrest the petitioner cooperated in investigation and gave vital information to the police, which was helpful in solving the blind murder mystery. It is not denied on behalf of the prosecution that the petitioner supported the prosecution case at trial. This is borne out from the copy of the statement, which has been produced by the petitioner. 9. There cannot be any quarrel with the legal position that in terms of section 337 (3) Cr.P.C. bail to the approver, who is in custody, cannot be granted. This is borne out from the copy of the statement, which has been produced by the petitioner. 9. There cannot be any quarrel with the legal position that in terms of section 337 (3) Cr.P.C. bail to the approver, who is in custody, cannot be granted. However, in an appropriate case, this Court can release him on bail in exercise of inherent power under section 561-A Cr.P.C. Having regard to the nature of the involvement of the petitioner in the incident and the role said to have been played by him, his having supported the prosecution case at trial of the case and the fact that he is now in custody from last more than two years, the interest of justice demands that he is released on bail instead of keeping him in custody. 10. Viewed this, this petition is allowed and the petitioner (approver) is admitted to bail. He shall be released on his furnishing a personal bond in the amount of Rs. 50,000/- with two sureties, each in the like amount, to the satisfaction of the trial court. 11. Disposed of.