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2018 DIGILAW 170 (JK)

Gh. Mohd. Dar v. State of J&K

2018-03-20

M.K.HANJURA

body2018
JUDGMENT : M.K. Hanjura, J. 1. In this petition, the petitioner/accused craves the indulgence of this Court in admitting him to bail for the commission of offences under section 13, 18 of the Unlawful Activities (Prevention) Act, on the grounds, Inter alia, that he was detained by the security forces without any rhyme or reason whatsoever and was lodged in Police Station Baramulla, where a case bearing FIR No. 107/2017 for the commission of the aforesaid offences was registered against him. He moved an application for enlarging him on bail before the learned Principal District Judge, Baramulla and the learned Principal District Judge, Baramulla by his order dated 22.01.2018, directed that the petition of the petitioner is bereft of any merit and substance and, therefore, the same is rejected. It is stated in the application that the accused is a peace loving citizen of the State. He has not committed any offences and as such, his detention is unreasonable and unjustified. It is also pleaded in the application that the trial court has failed to appreciate the facts and circumstances of the case and the legal position governing the law of bails in the right perspective. The findings recorded by the trial court in rejecting the bail, are contrary to the legal position evolved on the subject. The accused/applicant has been languishing in the jail for the last more than six months. He is around 74 years of age. He has never indulged in any unlawful activity. He has an unblemished past history. The investigation of the case is almost complete and his further detention in the case will not serve any purpose. It will amount to pre-trial detention which is not only against the concept of liberty, guaranteed in terms of Article 21 of the Constitution of India but has other consequences also. The accused is presumed to be innocent unless and until his guilt is proved and there is nothing on record which can connect the accused/applicant with the commission of the crime imputed to him. The offence in which the accused/applicant has been arrested, does not carry the punishment of death or life imprisonment. It is only in cases where the punishment is death or life imprisonment that bail can be refused and in all other cases grant of bail is the rule. The offence in which the accused/applicant has been arrested, does not carry the punishment of death or life imprisonment. It is only in cases where the punishment is death or life imprisonment that bail can be refused and in all other cases grant of bail is the rule. The applicant/accused is suffering from various ailments and prison hell will destroy and damage the condition of his health. 2. The State has resisted and controverted the application of the applicant on the grounds that on 28.09.2017, startling inputs were received from reliable sources to the effect that some of the miscreants are providing logistic support to the terrorists affiliated with various proscribed organizations i.e. Lashkar-e-Taiba, JeM, HM, FT and local militants. The reprobates besides arranging shelter for them and facilitating their free movement, undermine the peace and stability of the area. On receipt of the information, a case under FIR No. 107/2017, came to be registered triggering inquest in the matter at Police Station Baramulla. Consequently, investigation was set in motion. The statements of the witnesses, were recorded under section 161 Cr.P.C and in addition the statement of witnesses u/s. 164 Cr.P.C., were also recorded. During the course of the investigation of the case, the movement of foreign terrorists was reported in Halqa Gulistan Payen Fatehgarh Area of the District which promoted the investigating officer to raid a house and confront the inmates with the photograph of a purported foreign terrorist namely Khalid Bhai. One Sajad Ahmad Bhat S/o. Bashir Ahmad Bhat R/o Gulstan Payeen, Fatehgarh on seeing the photograph of the said terrorist admitted to have hosted him after being introduced as a guest by the petitioner herein who was known to him as a Homeopathic Doctor who had treated his father. Sajad Ahmad Bhat also disclosed before the investigating agency that the suspect i.e. the petitioner herein made him to believe that the foreign terrorist had developed some differences with his father and lured to accommodate him for few days. After some days, the petitioner took the said foreign terrorist with him. However, on 14.09.2017, the said foreign terrorist was eliminated in a fierce fighting in the area of Sopore. In this regard, FIR No. 56/2017 U/S 7/25 A. Act was registered in P/S Dangiwacha. In terms of order passed by the Court the custody of the accused/applicant was changed from case FIR No. 107/2017 to 140/2016 P/S Baramulla. However, on 14.09.2017, the said foreign terrorist was eliminated in a fierce fighting in the area of Sopore. In this regard, FIR No. 56/2017 U/S 7/25 A. Act was registered in P/S Dangiwacha. In terms of order passed by the Court the custody of the accused/applicant was changed from case FIR No. 107/2017 to 140/2016 P/S Baramulla. The accused was lodged in sub jail Baramulla. It is important to mention here that the applicant/accused has already approached the Court of Principal Sessions Judge, Baramulla for seeking bail. However, the Court vide its order dated 22.01.2018 has rejected the same. The petitioner has been instrumental in providing shelter and logistic support to aforesaid foreign militant and the grant of bail in favour of the petitioner at this stage is not sustainable. In the event of bail, there is every possibility that accused/applicant will influence the other witnesses to turn the case in his favour. There are reasonable grounds for believing that the accusation against the accused is prima facie true. The application of the applicant cannot be considered in light of the fact that the involvement of the accused/applicant has surfaced in a crime that has put the security of the State at a peril. It is prima facie established by the Investigating Agency that the petitioner was involved in arranging money and logistic support to the foreign militants of proscribed organizations. The investigation is at a crucial stage. The process of collecting further material and evidence to buttress the involvement of the accused is moving on. 3. Heard and considered. 4. Before adverting to the merits of the controversy, it will be profitable to quote and reproduce the relevant provisions of law under the shade and cover, of which the accused has been taken into the custody. Section 13 of the Unlawful Activities (Prevention) Act, running under the head "punishment for unlawful, activities" reads as under: 1. Whoever-- (a) Takes part in or commits, or (b) advocates, abets, advices or incites the commission of, any unlawful activity, shall be punishable with imprisonment for a term which may extend to seven years and shall also be liable to fine. Section 18 provides the punishment for conspiracy etc. Whoever-- (a) Takes part in or commits, or (b) advocates, abets, advices or incites the commission of, any unlawful activity, shall be punishable with imprisonment for a term which may extend to seven years and shall also be liable to fine. Section 18 provides the punishment for conspiracy etc. and it is detailed below: Whoever conspires or attempts to commit, or advocates, abets, advices or incites or knowingly facilitates the commission of a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine. Section 43 (D) of the Act which is inserted in the statute, brings within its amplitude the provisions that are required to be followed while determining the question of the grant of bail in favour of a person accused of the commission of an offence under the Act. It reads as under:- [43D. Modified application of certain provisions of the Code.-- (1) Notwithstanding anything contained in the Code or any other law, every offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of clause (c) of section 2 of the Code, and "cognizable case" as defined in that clause shall be construed accordingly. Modified application of certain provisions of the Code.-- (1) Notwithstanding anything contained in the Code or any other law, every offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of clause (c) of section 2 of the Code, and "cognizable case" as defined in that clause shall be construed accordingly. (2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2),-- (a) the references to "fifteen days", "ninety days" and "sixty days", wherever they occur, shall be construed as references to "thirty days", "ninety days" and "ninety days" respectively; and (b) after the proviso, the following provisos shall be inserted, namely:-- "Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days: Provided also that if the police officer making the investigation under this Act, requests, for the purposes of investigation, for police custody from judicial custody of any person in judicial custody, he shall file an affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody.". (3) Section 268 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that-- (a) the reference in sub-section (1) thereof-- (i) to "the State Government" shall be construed as a reference to "the Central Government or the State Government"; (ii) to "order of the State Government" shall be construed as a reference to "order of the Central Government or the State Government, as the case may be"; and (b) the reference in sub-section (2) thereof, to "the State Government" shall be construed as a reference to "the Central Government or the State Government, as the case may be". (4) Nothing in section 438 of the Code shall apply in relation to any case Involving the arrest of any person accused of having committed an offence punishable under this Act. (4) Nothing in section 438 of the Code shall apply in relation to any case Involving the arrest of any person accused of having committed an offence punishable under this Act. (5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. (6) The restrictions on granting of bail specified in sub-section (5) is in addition to the restrictions under the Code or any other 1law for the time being in force on granting of bail. (7) Notwithstanding anything contained in sub-sections (5) and (6), no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country unauthorisedly or illegally except in very exceptional circumstances and for reasons to be recorded in writing.] 5. The learned Sessions Judge, after taking a note of the provisions cited above has held and correctly so, that the aim and object of the insertion of Section 43 (D) in the statute appears to be that the public order is not derailed. On the face of the said provision, the age old axioms and the maxims of the law of bails that the grant of bail is a rule and its refusal is an exception or bail and not jail, do not hold good in a case like the present one provided that the court comes to the conclusion that there are reasonable grounds to believe that the accusation leveled against the accused is prima facie true. The rigor of section 43 (d) has to be applied in vigor to such a case while considering the application for the grant of bail. 6. The order of learned Sessions Judge, Baramulla, is lucid, luminous and clear. The rigor of section 43 (d) has to be applied in vigor to such a case while considering the application for the grant of bail. 6. The order of learned Sessions Judge, Baramulla, is lucid, luminous and clear. The learned Sessions Judge, has rightly stated in the order that the stringent promulgation of Section 43(D) in ULAP Act, has to be seen and scanned from the perspective of the deep concern shown by the legislature owing to spiraling terrorist violence that has spread its tentacles across the length and breadth of the country, more particularly the State of Jammu & Kashmir which has witnessed terrorist violence for the last three decades approximately by now which has led to a huge loss of human lives. Societal calm cannot be allowed to be sacrificed at the altar of vandalism by the anti social elements. 7. The bottom line of the order of the learned Sessions Judge, is that the case diary is a sequel to the fact that the petitioner is allegedly involved in arranging logistics for the terrorists, more particularly the foreign nationalists involved in terrorist related activities. He has also come to the conclusion that the perusal of the case diary would show and satisfy the court that there are reasonable grounds to believe that the allegations/acquisitions leveled against the accused are prima facie credible and plausible and that the investigating agency is in the process of collecting further evidence to scan and analyze the involvement of the accused in the commission of the crime imputed to him. In the end, the learned court has held that the application of section 43(d) of the Act, as reproduced hereinbefore, applies to the instant petition in all the fours and therefore, the application of the applicant/accused is liable to be rejected. 8. The learned Additional Sessions Judge has placed explicit reliance on the law laid down in Union of India v. Ikram Khan & Ors. reported in AIR 2000 SC 3397 , Kartar Singh v. State of Punjab reported in [It seems to be read as "law"-Editor] (1994) 3 SCC 569 , Mohammad Navas v. SHO reported in 2009 (3) KHC 545 , in carving out a case for rejection of bail in favour of the accused. In the case of Union of India v. Ikram Khan & Ors. In the case of Union of India v. Ikram Khan & Ors. reported in AIR 2000 SC 3397 , the Apex Court quashed the order of bail granted in favour of the accused by the lower court that had over looked the application of the rigor of section 37 of the NDPS Act, in a case relating to the recovery of commercial quantity of contraband from the erring accused. In Kartar Singh's case, which applies to the instant case in all the fours, the Apex Court of the Country while expressing anguish over the crimes that the terrorists perpetuate upon innocent citizens held as under; "The country has been in the firm grip of spiraling terrorist violence and is caught between deadly pangs of disruptive activities. Apart from many skirmishes in various parts of the country, there were countless serious and horrendous events engulfing many cities with blood bath, firing, looting, mad killing even without sparing women and children and reducing those areas into a graveyard, which brutal atrocities have rocked and shocked the whole nation. Deplorably determined youth, lured by hard-core criminals and underground extremists and attracted by the ideology of terrorism are indulging in committing serious crimes against the humanity." In Mohammad Navas's case, this High Court evolved the norms required for considering an application for the grant of bail in favour of a person involved in terrorist activities and these are delineated below:- "Terrorism is an evil affecting the life and liberty of peace loving people. Terrorism has no barriers, it may strike anybody anytime, any amount of precautionary measures and security arraignments may prove futile to combat terrorism. Fundamental rights to individual liberty is certainly valuable. But when it is pitted against the life and liberty of the people at large, it becomes insignificant. Terrorism effects the growth of the nation. The resources of the nation have to be utilized to combat terrorism: it could be utilized in better ways for the betterment of the people. Offences against individuals are to be distinguished from offences affecting nation and people at large. Parameters to be adopted in the matter of considering the pleas of bail would also be different in these cases. A strict approach in the latter category of cases is justified. Sympathy has no rule in dealing with such cases. 9. Offences against individuals are to be distinguished from offences affecting nation and people at large. Parameters to be adopted in the matter of considering the pleas of bail would also be different in these cases. A strict approach in the latter category of cases is justified. Sympathy has no rule in dealing with such cases. 9. Looking at the petition of the petitioner from another perspective, what can be said, is that the petitioner has neither pleaded anywhere nor has he satisfied this court 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 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. 10. In view of the preceding analysis, there appears to be no merit and substance in the bail application of the petitioner. The same entails dismissal and is, accordingly, dismissed. Interim directions, if any, in force shall stand vacated. Registry to send a copy of this order to the Learned Trial Court for information.