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2017 DIGILAW 928 (JK)

State Of J & K v. Manzoor Ahmad Sheikh

2017-10-12

M.K.HANJURA

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JUDGMENT : M.K. Hanjura, J. In this petition, filed by the State under section 561-A Cr.PC, the indulgence of this court has been sought in quashing the order of bail dated 09-06-2016, passed by the Court of Additional District Judge, Baramula, in case titled State of J&K through S.H.O Police Station, Tangmarg, vs. Manzoor Ahmad Sheikh, bearing F.I.R. No. 20/2016, for an offence under section 306 Ranbir Penal code - Police Station Tangmarg, on the grounds, inter alia, that the impugned order is an illegal one. The trial Court has not appreciated the magnitude and the ramifications of the crime, inasmuch as, the offence committed is not only against an innocent girl, aged 19 years, but is also against the whole society. The impugned order amounts to prejudging the trial of the case, which has caused prejudice to the prosecution and, as such, is liable to be set aside. 2. In his objections, the respondent - accused has stated that the petition of the petitioner - State, deserves to be dismissed on the ground that the prosecution has not taken recourse to the relevant provisions of the Cr.PC, seeking cancellation of the bail of the accused nor has any allegation been made by the prosecution, justifying the cancelation of the bail. It is further sated in the objections that the object of bail is to secure the appearance of an accused person at the trial and that the same is neither punitive nor preventive. The deprivation of liberty of an individual citizen is considered punitive. It is stated further that under law imprisonment before conviction is improper as the accused is presumed to be innocent unless and until his guilt is proved. It is further stated that it is the well settled position of law that grant of bail, instead of jail, should be the rule to uphold individual liberty guaranteed by the Constitution. 3. Heard and considered. The relevant record has also been perused by me. 4. There is no doubt that the accused has been admitted to bail in an offence, which is heinous in nature. But the question for consideration is whether in a case, where bail has been granted by the Sessions Judge, the High Court is invested with the powers to upset the same when its cancellation has not been sought. 4. There is no doubt that the accused has been admitted to bail in an offence, which is heinous in nature. But the question for consideration is whether in a case, where bail has been granted by the Sessions Judge, the High Court is invested with the powers to upset the same when its cancellation has not been sought. The answer to this proposition is provided in the law laid down by the Hon'ble apex Court in the judgment reported in AIR 1978 SC 179 , wherein it has been held as under : “17. It is significant to note that under Section 397 Cr.PC of the new Code while the High Court and the Session Judge have the concurrent powers of revision, it is expressly provided under sub section 3 of that section that when an application under that section has been made by any person to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. This is the position explicitly made clear under the new Code with regard to revision when the authorities have concurrent powers. Similar was the position under section 435(4), Cr.PC of the old Code with regard to concurrent revision powers of the Sessions Judge and the District Magistrate. Although under section 435(1) Cr.PC of the old Code, the High Court, a Sessions Judge or a District Magistrate had concurrent powers of revision, the High Court's jurisdiction in a revision was left untouched. There is no provision in the new Code excluding the jurisdiction of the High Court in dealing with an application us/439(2) Cr.PC to cancel bail after the Sessions Judge had been moved and an order had been passed by him granting bail. The High Court has undoubtedly jurisdiction to entertain the application under section 439 (2) Cr.PC for cancellation of bail notwithstanding that the Sessions Judge had earlier admitted the appellants to bail. There is, therefore, no force in the submission of Mr. Mukerjee to the contrary.” 5. Strengthening this point further the law laid down at Para No. 23 in the case of Mohit alias Sonu and Anr vs. State of U.P and Anr. reported in 2013 AIOL 375 assumes significance and it laws down as under:- 23. There is, therefore, no force in the submission of Mr. Mukerjee to the contrary.” 5. Strengthening this point further the law laid down at Para No. 23 in the case of Mohit alias Sonu and Anr vs. State of U.P and Anr. reported in 2013 AIOL 375 assumes significance and it laws down as under:- 23. So far as the inherent power of the High Court as contained in section 482 of Cr.P.C, 1973 is concerned, the law in this regard is set at rest by this Court in a catena of decisions. However, we would like to reiterate that when an order, not interlocutory in nature, can be assailed in the High Court in revisional jurisdiction, then there should be a bar in involving the inherent jurisdiction of the High Court. In other words, inherent power of the Court can be exercised when there is no remedy provided in the Criminal Procedure Code for redressal of the grievance. It is well settled that inherent power of the Court can ordinarily be exercised when there is no express provision in the Code under which order impugned can be challenged. 6. Since the accused has already been admitted to bail by the orders of learned Sessions Judge, the proper course available to the State was to seek the cancelation of the bail and to work carve out their remedy by filing a petition under section 561-A Cr.PC. The inherent powers of the Court can only be exercised when there is no other remedy provided in the Criminal Procedure Code for the redressal of the grievances. 7. Looking at the instant case from another perspective, there is no allegation against the respondent - accused that he ever violated any of the conditions incorporated in the order, whereby he has been admitted to bail and the record of the trial Court bears testimony to the fact that the accused has appeared before the Court on each and every date fixed in the case. He has never absented himself from the Court and to cap it all the order dates back to 09.06.2016. More than 16 months have elapsed since then and it will neither by appropriate not proper to dislodged the same after such a pass and, therefore, the order of the trial Court does not call for any interference. 8. Petition is, accordingly, dismissed along with connected IAs. 9. More than 16 months have elapsed since then and it will neither by appropriate not proper to dislodged the same after such a pass and, therefore, the order of the trial Court does not call for any interference. 8. Petition is, accordingly, dismissed along with connected IAs. 9. The record, requisitioned in the case, shall be sent back to the trial Court forthwith. Petition dismissed.