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2018 DIGILAW 168 (JK)

Bashir Ahmad Bhat v. State of J&K

2018-03-19

M.K.HANJURA

body2018
JUDGMENT : M.K. Hanjura, J. 1. Aggrieved by the order dated 10.07.2017 passed by the Court of Ld. Additional Sessions Judge, Handwara, whereby he has declined to grant bail in favour of the petitioners for the commission of an offence under section 306 RPC, the petitioners have filed the revision and a successive bail application before this Court on the grounds inter-alia that the base line of the order of the Ld. Sessions Judge, is that the offence, the commission of which has been attributed to them carries a punishment often years; that they will flee from justice, in case they are admitted to bail; that they will influence the prosecution witnesses in case of their release and that the grant of bail in their favour shall have serious ramifications. 2. The petitioners have pleaded in their petitions that they have not committed any offence. The Court below has failed to consider the relevant factors guiding the grant or refusal of bail. The allegations levelled against the petitioners are patently false, baseless and concocted. There is no substance in the fact that the petitioners are involved in the alleged offence. The Court below has rejected the application of the petitioners on the premise that they have abetted the deceased to consume poison. The rejection of the application of the bail, as such, is patently illegal and against the law. It amounts to prejudging the matter. The petitioners are law abiding citizens. The impugned order is perverse and has caused miscarriage of justice. The petitioners have been arrayed as accused on considerations which are extraneous. In the end, the petitioners have prayed that they may be admitted to bail. 3. The state has resisted and controverted the petitions of the petitioners chiefly on the grounds that the deceased Fahmeeda Bano wife of the petitioner namely Bashir Ahmad Bhat consumed some poisonous substance at her home. She was taken to the District Hospital, Handwara from where she was referred to SMHS Hospital Srinagar for further treatment where she breathed her last. The dead body was taken into the police custody. A case was registered at Police Station Handwara and during the course of the investigation of the case, it came to the fore that the family members of the deceased had abetted her to put an end to her life. 4. Heard and considered. 5. The Ld. The dead body was taken into the police custody. A case was registered at Police Station Handwara and during the course of the investigation of the case, it came to the fore that the family members of the deceased had abetted her to put an end to her life. 4. Heard and considered. 5. The Ld. Additional Sessions Judge, Handwara, has by a well-reasoned order rejected the application of the petitioners and the relevant excerpts thereof that have a bearing on these petitions are reproduced herein below verbatim et-literatim:- "But the concession of bail cannot be extended to the bail petitioners 1 and 4 for three reasons: the first reason is that the judicial Magistrate has not granted bail to the petitioner No. 1; this court requires to consider if he has brought anything which would suggest that there has been an appreciable change of circumstances in the case from the time of denial of his bail by the Judicial magistrate. The record does not evince that there has been any such change in circumstances of the case. Regarding bail petitioners no. 4 the defence has not produced on record anything which would suggest that he is presently suffering from any neurological malady. The defence counsel has produced on record copy of a certificate issued by the Govt. Psychiatric Hospital Srinagar on 19.02.2004 evincing that the bail petitioner No. 4 was diagnosed as a case of Seizure Disorder and that he has been advised treatment of his disease for a prolonged period of time. But he has not produced on record anything to show or suggest that he continues to suffer from that disease which would have persuaded this Court to consider his case apart from that of bail petitioner no. 1. The second reason for denying bail to the petitioners No. 1 and 4 is that they face a serious allegation of having forced the deceased into consuming poison and end her life; the bail petitioner No. 1 was husband of the deceased and the bail petitioner No. 4 was her brother-in-law; they face the serious allegation of having tortured the deceased, of having maltreated and manhandled her and of having brutalized her. These are allegations which are prima facie substantiated by the material on record; the offence of abetment to suicide is a serious offence; a human life is lost, the public conscience is outraged and social fabric takes on a nasty look such incidents revolt against the fair sense of social peace and tranquility. The peace that begins with the self and permeates through a family into the social fabric is the foundation of an ordered and peaceful society; what is it that disturbs family peace is the element of incompatibility between the spouses and other family members, every member of the family is responsible for maintaining familial peace but when a life is lost due to lack of familial peace, it outrages the social conscience and prompts a social outcry. This court considers in this backdrop that the release of the bail petitioners No. 1 and 4 would lead to social outcry and outburst. The court must accord regard to the genuine social sentiments, the death of a person on the allegation of abetment to suicide would evoke social censure; the life of every human being is precious and any allegation that a human being was forced to end his life on account of maltreatment, brutality, cruelty and manhandling must be viewed seriously for it has repercussions on social peace and order. It is for this reason that this Court thinks that the release of the bail petitioners 1 and 4 at this stage of the case would be viewed with uneasy by the people. The third reason which persuades this court to deny bail to the bail petitioners 1 and 4 is to prevent them from absconding and tampering with the prosecution evidence. The trial of the case has not started yet and the gravity of the offence and the severity of the punishment carried by it is an aspect that may induce the bail petitioners 1 and 4 to abscond and avoid justice or tamper with and manipulate the prosecution evidence. Though there is no certainty that they or any one of them, if released on bail, would abscond and avoid justice or tamper with the prosecution evidence yet the chances of their absconsion and manipulation and tampering with the prosecution evidence in the face of serious accusation of abetment to suicide cannot be ruled out. Though there is no certainty that they or any one of them, if released on bail, would abscond and avoid justice or tamper with the prosecution evidence yet the chances of their absconsion and manipulation and tampering with the prosecution evidence in the face of serious accusation of abetment to suicide cannot be ruled out. The one purpose which the legislators would have in mind at the time of prescribing the embargo on the power of the court to grant bail to any person accused of an offence punishable with death or imprisonment for life is to disallow him the opportunities of absconsion and manipulation and tampering with the prosecution evidence since there always exists a thought in the mind of the accused in the face of such serious indictment to abscond or tamper with the prosecution evidence. The release of the bail petitioners in the face of a reasonable apprehension that they may avoid justice by absconsion or they may interfere with the administration of justice of tampering with the prosecution evidence or thwarting the trial would not be proper." 6. The order of the Ld. Additional Sessions Judge, Handwara, is lucid and clear. It does not call for any interference. The Ld. Judge has touched all the issues germane to the decision of the case and has exercised the discretion in the right perspective by directing that the petitioners before this Court do not deserve to be admitted to bail as they have forced and coerced the deceased to consume poison. The order of the Learned Additional Sessions Judge, Handwara is based on the law and the facts involved. However, it may be added that the law is that bail in a non-bailable offence cannot be granted as a matter of right. It is within the discretion of the Court. The discretion has to be exercised judiciously. It has to be supported by the reasons and the law governing the grant or refusal of the bails. The question of grant of bail cannot be put in a steal jacket formula. The Court has to be guided by the relevant factors which have to be taken into consideration. A human life has been lost and the embers of the grave of the deceased have not cooled down as yet. The Learned Additional Sessions Judge, Handwara has considered all these facets of the case while passing the order aforesaid. 7. The Court has to be guided by the relevant factors which have to be taken into consideration. A human life has been lost and the embers of the grave of the deceased have not cooled down as yet. The Learned Additional Sessions Judge, Handwara has considered all these facets of the case while passing the order aforesaid. 7. Looking at the instant petition from the another perspective, it has not been stated anywhere in the petitions that there has been any change in the circumstances of the case from the date of the order of the rejection of the bail passed by the Trial Court till such time that this petition has been moved before this Court. It is well settled in law that no successive application for bail can be allowed/entertained unless and until there has been a change in the circumstances of the case. No doubt, the principle of res-judicata does not have its application to the bail applications but the Court has to peep deep to see whether there has been any perceptible change in the circumstances of the case and in case it is not found to be so the filing of a successive application will lead to a bad precedent. An order rejecting an application of bail would not per-se-close the doors of the petitioner in moving another application on a subsequent occasion but the condition precedent is that there should be some fresh material and further developments in the case as will impel and actuate the Court to consider the successive application for bail. There is no legal bar in entertaining the subsequent application if it is pointed out that there has been a change of substantial nature in the facts and circumstances of the case since the date of passing the earlier order. Nothing to substantiate so has been stated in the application on hand. 8. In view of the preceding analysis, there appears to be no merit and substance in the revision petition of the petitioners. The same entails dismissal. It is, accordingly, dismissed, as a corollary to which, the connected bail application (B.A. No. 72/2017) shall also stand dismissed. Interim directions, if any, in force shall stand vacated. 9. Registry to send a copy of this order to the Learned Trial Court for information.