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2018 DIGILAW 1016 (JK)

Rohit Sharma v. State of J&K

2018-12-21

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. Through the instant application filed under Section 498 of the Code of Criminal Procedure (hereinafter for short, Cr.P.C.) petitioners seek bail. 2. Facts, relevant for disposal of the present bail application, briefly stated are that; two cases (challans) out of one occurrence dated 08.07.2009 have arisen between the same parties. Whereas case titled, "State v/s Jyoti Sharma & Ors.", had been registered pursuant to F.I.R. No.110 of 2009, for the offences under Sections 302 and 34 of the Ranbir Penal Code read with Sections 3/25 and 4/25 of the Arms Act and case titled, "State v/s Sunil Sharma & Ors." came to be registered pursuant to F.I.R. No.111 of 2009, for the offences under Sections 307 and 34 of the Ranbir Penal Code read with Sections 3/25 and 4/25 of the Arms Act by the respondent. It is stated that the instant case is an outcome of F.I.R. No. 110 of 2009 and still pending trial in the Court of 1st Additional Session Judge, Jammu, for final arguments and the other challan titled, "State v/s Sunil Kumar & Ors.", which is an outcome of F.I.R. No.111 of 2009, was initially pending trial in the Court of Principal Sessions Judge, Jammu. However the Hon’ble High Court has transferred the challan titled, "State v/s Sunil Kumar & Ors.", to the trial Court i.e., 1stAdditional Sessions Judge, Jammu, on the ground that both the cases pertain to one transaction and in order to avoid possible conflicting judgments. It is stated that after the passing of the abovementioned order and in view of the aforementioned facts and circumstances, proceedings in the case titled. "State v/s Jyoti Sharma & Ors.", has been deferred by the trial Court so that the final arguments in both the cases could be heard together. However, in the case titled, "State v/s Sunil Kumar & Ors., the proceedings are going at a slow pace for the reasons that one accused has passed away, one accused has been proceeded under Section 512 of the Code of Criminal Procedure, the third accused is playing hide and seek with the trial Court. This being so, the trial is bound to take years together in further incarceration of the petitioners herein, for no fault of theirs. 3. This being so, the trial is bound to take years together in further incarceration of the petitioners herein, for no fault of theirs. 3. The learned counsel for the petitioners contends that the petitioners facing incarceration for the last eight years and also the case is ripe for final hearing but in other case titled “State v/s Sunil Kumar & Ors.", only one witness has been recorded by the trial Court so far and is bound to take considerable time, therefore, the petitioners approached the trial Court for their release on bail, but the trial Court vide its order dated 28.10.2017 has rejected their bail applications. 4. In the application, it is averred that the petitioners belong to very respectable families and have got deep roots in the society. There is, therefore, no apprehension that they would either flee from justice or tamper with the prosecution evidence because the case is pending for final hearing. 5. Heard learned counsel for the parties and perused the record. In support of his contention, learned counsel for the petitioners relies upon the decisions of the Hon’ble Supreme Court in case reported in 1990 SCC (Crl) 638, Nathi Lal and Ors. vs State of U.P. and Anr. (2001) 2 SCC 688 , Sudhir and Ors. Etc. vs State of M.P. Etc. Reliance is also placed on a decision of the High Court of Allahabad titled Gyani vs. State of U.P., Cr. Misc. IV B.A. No. 22680 of 2009, decided on 30.11.2011. Whereas AAG has argued that trial court may be directed to hear the arguments in murder case; but bail in heinous offence cannot be granted on such grounds. 6. I have given my thoughtful consideration to whole aspects of the matter. 7. The operative part of the order dated 28.10.2017, passed by 1st Additional Sessions Judge, Jammu reads as follows :- “The accused have filed this application seeking bail on the ground that the case in which they are facing trial for commission of offences under Section 302/34 RPC is fixed for final arguments and trial of the other case will take some time to be concluded and till then accused cannot be kept behind the bar. The accused are facing trial for commission of offences which is punishable with life imprisonment or death sentence and there is bar in granting bail to the accused. The accused are facing trial for commission of offences which is punishable with life imprisonment or death sentence and there is bar in granting bail to the accused. The perusal of the record of both the cases reveals that accused in the present case cannot be released on bail on the grounds pleaded by them in the instant application. I have considered the prayer of the applicants /accused for bail in the light of the given facts and circumstances of the case and keeping in view the serious nature of the crime allegedly committed by the accused Section 302/34 RPC, they cannot be released on bail. According to the prosecution case, the allegations against the accused are regarding the commission of murder of a young boy in broad day light by using the weapons of offence. The application of the accused deserves to be rejected. In view of the aforesaid discussion, the application filed by the accused for seeking bail is rejected. The application is accordingly, disposed of and be attached with the main file.” 8. The status report filed by 1st Additional Sessions Judge, Jammu pursuant to this Court direction dated 26.11.2018 reads as under : “That instant challan titled State Vs. Jyoti Sharma and others, has been presented in the court of learned Judicial Magistrate Ist Class, R. S. Pura on 05.10.2009, which came to be committed to the Court of learned Principal Sessions Judge Jammu on the same date. The learned Principal Sessions Judge Jammu, after receipt of file transferred the same to the Court of learned 3rd Additional Sessions Judge Jammu vide order dated 15.10.2009. On 09.12.2009, accused Rohan Kumar has been charged for commission of offences punishable under Sections 302,201/34 RPC, whereas accused Sushil Kumar and Rohit Sharma have been charged for commission of offences punishable under Sections 302, 201, 34 RPC and 4/25 Arms Act, to which they pleaded not guilty and claimed to be tried and accordingly prosecution has been directed to produce evidence in support of its case. 2. On 30.11.2010, accused Jyoti Sharma has also been charged for offences punishable under Sections 302/201/34 RPC and 3/25 Arms Act. Vide communication No. 6485-90/PDSJ dated 23.02.2013 passed by the Court learned Principal Sessions Judge Jammu, the instant case has been transferred to this court and has been received on 28.02.2013. 2. On 30.11.2010, accused Jyoti Sharma has also been charged for offences punishable under Sections 302/201/34 RPC and 3/25 Arms Act. Vide communication No. 6485-90/PDSJ dated 23.02.2013 passed by the Court learned Principal Sessions Judge Jammu, the instant case has been transferred to this court and has been received on 28.02.2013. Prosecution has examined seventeen witnesses and evidence of the prosecution has been closed on 27.04.2013. On 13.09.2013, accused were examined under section 342 Cr.P.C., they had opted to produce evidence in defence, accordingly accused have examined six witnesses in their defence and defence evidence has been closed on 14.09.2015. Due to absence of accused No. 1, who has been lodged in Tihar Jail Delhi, the final arguments could not be concluded in the case. Hon’ble High Court vide order dated 01.06.2017 passed in Transfer Application No. 13/2016 has issued a direction to this Court to decide the instant case alongwith other cross case titled State Vs. Sunil Kumar and others, offence under Sections 307/34 RPC & 3/4/25 Arms Act pending in this Court. Hon'ble High Court has also observed that cross cases relating to the same occurrence be tried simultaneously and disposed of individually by the same Court. Learned defence counsel has submitted that till conclusion of the trial in other cross case titled State Vs. Sunil Kumar and others, final arguments in the instant case cannot be heard as per the order passed by Hon’ble High Court. As such, the instant case is pending for final arguments. 9. From the perusal of documents attached in the petition, it is evident that trial in F.I.R. No.110 of 2009, for the offences under Sections 302 and 34 of the Ranbir Penal Code read with Sections 3/25 and 4/25 of the Arms Act against petitioners came to be completed on 14.09.2015, when evidence of defense was closed and case was put up for final arguments; the cross-case titled, "State v/s Sunil Sharma & Ors." came to be registered pursuant to F.I.R. No.111 of 2009, for the offences under Sections 307 and 34 of the Ranbir Penal Code read with Sections 3/25 and 4/25 of the Arms Act, which was already pending before Pr. Sessions Judge Jammu, came to be transferred by the said court on the application moved by complainant( petitioner herein ) in Cr.T.A. 13/2016 on 01.06.2017 to 1st Additional Session Judge, Jammu where already murder case was pending with direction to conduct trial and decide the counter case simultaneously. 10. So from bare perusal of these facts, it is evident that trial in F.I.R. No.110 of 2009, for the offences under Sections 302 and 34 of the Ranbir Penal Code read with Sections 3/25 and 4/25 of the Arms Act against petitioners was already completed, when cross case was transferred, so question of conducting simultaneously trial of counter case was not possible. Perhaps this fact was deliberately not brought to the knowledge of this court in transfer application i.e. Cr.T.A.No.13/2016 and at the time of order passed in this petition on 01.06.2017. 11. There is no dispute with regard to laws cited in Nathi Lal and Ors. vs State of U.P. and Anr.; Sudhir and Ors. vs State of M.P.; decision of the High Court of Allahabad in case titled Gyani vs. State of U.P., (supra), wherein it is held that in cross cases it would have been just fair and proper to decide both the cases together by the same court. The cross-cases should be tried together by the same court irrespective of the nature of the offence involved. The rationale behind this is to avoid the conflicting judgments over the same incident because if cross cases are allowed to be tried by two courts separately there is likelihood of conflicting judgments. 12. As already held trial in murder case was already completed, when cross case was transferred to court below. Accused have been involved under section 302 and 34 of the Ranbir Penal Code read with Sections 3/25 and 4/25 of the Arms Act; the punishment for murder case is death or life imprisonment; the bail in such like cases cannot be granted on the ground that trial in cross case is not likely to complete at earlier; the conduct of petitioners is also mysterious, because when they were knowing that trial in their case was already complete, then why this fact was not brought to the knowledge of High Court, when the order was being passed in transfer application. 13. In view of above, this application is dismissed. 13. In view of above, this application is dismissed. However, trial court is directed to complete the trial in cross case in F.I.R. No. 111 of 2009, for the offences under Sections 307 and 34 of the Ranbir Penal Code read with Sections 3/25 and 4/25 of the Arms Act, preferably within six months.