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2018 DIGILAW 414 (JK)

Shahid Rashid v. State

2018-06-07

M.K.HANJURA

body2018
JUDGMENT : 1. Two applications for the grant of bail in favour of the applicants in case bearing FIR No. 41/2017, registered at Police Station Nowabad, Jammu, for the commission of offences punishable under Sections 341/307/392/353/332/420/120B/212/RPC and 4/25 Arms Act, require consideration by this order. 2. What needs to be stated at the outset is that the applicants filed two applications before the Court of the learned Principal Sessions Judge, Jammu, for releasing them on bail primarily, on the same grounds as have been agitated in these applications. Both the applications met the same fate and were dismissed by an order dated 30.10.2017 of the learned Principal Sessions Judge, Jammu, holding that the applicants-accused are involved in heinous offences which are against the security and sovereignty of the State and the grant of bail in their favour at this stage when the trial of the case is at the initial state is not sustainable. The order further states that in the event of bail, there is every possibility that the accused/applicants will influence the prosecution witnesses and will turn the case in their favour. It is further stated that there are reasonable grounds for believing that the accusation against the accused is prima facie true. The application of the applicants, it is stated, cannot be considered in light of the fact that the involvement of the accused/applicants 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 applicants were involved in attacking the SGCT Mohd. Hanief No. 355/Security and snatched his weapon. 3. The factual background of the case is that on 25.03.2017 at about 22.15 hours, an information was received by the police authorities of the Police Station Nowabad, Jammu, from a reliable source that a police man after completing his duty was on way from Jewel Chowk to Bikram Chowk along with his weapon and at that juncture some unknown persons with the criminal intention to kill him waylaid him, dusted chilli powder in his eyes and hit him with a hard wooden stick on his head, as a consequence of which the police man received injuries and the accused persons with an intention to create disturbances in some areas of Jammu District snatched the weapon (AK47 rifle) from him. Some persons shifted the police man to GMC Jammu for first aid. On this report, a case bearing FIR No. 41/2017 for the commission of the aforesaid offences was registered at Police Station Nowabad, Jammu, with which the investigation ensued. During the course of the investigation of the case, the I/O visited GMC Hospital and identified the victim whose name was found to be SGCT Mohd. Hanief No. 355/Security deputed at Centre Pol Jammu for security. The I/O recorded the statement of the victim under Section 161 Cr. PC and seized the blood stained uniform of the victim. The statements of the other witnesses were also recorded. During the investigation, one suspect who disclosed his name as Masrool Ahmad S/o Abdul Rashid Naik R/o Ratnipora Shopian, Kashmir, was arrested and he confessed that he committed the crime in association with a person namely Amir Hussain Bhat S/o Gh. Mohd. Bhat R/o Ratnipora Shopian, Kashmir, where after both of them fled away from the scene of crime along with the weapon. The motorcycle bearing registration No. JK02AH-7273 which was used by them in the commission of the crime was seized from the spot. On 26.03.2017, the applicant namely Shahid Rashid Najar S/o Ab Rashid Najar R/o Mimindar Shopian Kashmr, was arrested from Nagrota. The other motorcycle bearing registration No. JK03A 9754 which was used in the commission of crime was also seized in the case. On 28.03.2017, the applicant namely Amir Hussain Bhat S/o Gh Mohd Bhat R/o Ratnpora Shopian, Kashmir, was also arrested from Shopian, Kashmir. It is stated that it was at their behest that the weapons of offence allegedly used by both of them in committing the offences were recovered and that the injured has been discharged from the hospital. 4. The applicants herein filed two applications for the grant of bail in their favour in the FIR aforesaid. These applications were rejected by the Court of the learned Principal Sessions Judge, Jammu, by an order dated 30.10.2017. Aggrieved by this order, the applicants have filed these applications for the grant of bail in their favour, inter alia, on the grounds that the charge sheet has been laid against them before the competent Court, wherein the police authorities have reported that they are involved in the commission of offences under Sections 341/307/392/353/332/420/120B/212/RPC and 4/25 Arms Act. Aggrieved by this order, the applicants have filed these applications for the grant of bail in their favour, inter alia, on the grounds that the charge sheet has been laid against them before the competent Court, wherein the police authorities have reported that they are involved in the commission of offences under Sections 341/307/392/353/332/420/120B/212/RPC and 4/25 Arms Act. The applicants have further stated that they have been falsely implicated in the case. They are law-abiding citizens of the state having great regard for the laws of the land. They are innocent and in case bail is not granted in their favour, the applicants will suffer irreparable loss and injury which cannot be compensated in any means. 5. Heard and considered. 6. Risking repetition, what requires to be repeated and reiterated here is that the learned Principal Sessions Judge, Jammu, has rejected the bail applications of the applicants. The question therefore that arises for consideration at first is whether a successive application for bail will or will not lie before this court. The law evolved on the subject is that the jurisdiction of the Sessions Court and the High Court to consider an application for the grant of bail is concurrent. If the Sessions Court has rejected an application for bail, the High Court can consider the prayer afresh particularly when the order of the rejection of the bail is bad and perverse on the face of it. Resort can in this behalf be had from the law laid down in AIR 1978 SC page 179 wherein it has been held as under:- “17. It is significant to note that under S. 397, Cr. PC, of the new code while the High Court and the Sessions 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 the revision when the authorities have concurrent powers. Similar was the position under S. 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. This is the position explicitly made clear under the new Code with regard to the revision when the authorities have concurrent powers. Similar was the position under S. 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 revision was left untouched. There is no provision in the new Code excluding the jurisdiction of the High Court in dealing with an application under S. 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 S. 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. Mukherjee to the contrary.” 7. Taking a cue from the law laid down above, the High Court of Bombay in the Judgment reported in Crimes Volume 3 1987 page 363, Para No.7 of which is germane to the issue has held as follows:- “The above view of the learned Single Judge of the Kerala High Court appears to me to be correct. In fact, it is now well-settled that there is no bar whatsoever for a party to approach either the High Court or the Sessions Court with an application for an ordinary bail made under Section 439 Cr. PC. The power given by Section 439 to the High Court or to the Sessions Court is an independent power and thus, when the High Court acts in the exercise of such power it does not exercise any revisional jurisdiction, but its original special jurisdiction to grant bail. This being so, it becomes obvious that although under section 439 Cr. PC. concurrent jurisdiction is given to the High Court and Sessions Court, the fact, that the Sessions Court has refused a bail under Section 439 does not operate as a bar for the High Court entertaining a similar application under Section 439 on the same facts and for the same offence. PC. concurrent jurisdiction is given to the High Court and Sessions Court, the fact, that the Sessions Court has refused a bail under Section 439 does not operate as a bar for the High Court entertaining a similar application under Section 439 on the same facts and for the same offence. However, if the choice was made by the party to move first the High Court and the High Court has dismissed the application, then the decorum and the hierarchy of the Courts require that if the Sessions Court is moved with a similar application on the same fact, the said application be dismissed. This can be inferred also from the decision of the Supreme Court in Gurcharan Singh’s case (above).” 8. Looking at the order of the Learned Principal Sessions Judge, Jammu, whereby the applications of the applicants for the grant of bail in their favour have been rejected, the prosecution version is that the applicants are involved in the commission of offences punishable under Sections 341/307/392/353/332/420/120B/212/RPC and 4/25 Arms Act. It further reveals that the accused-applicants with criminal intention snatched the weapon issued in favour of the injured employee on 25.03.2017 and concealed the same in river Tawi which was later recovered at the instance of the accused-applicants. 9. The settled position of law as evolved by the Supreme Court in a catena of judicial dictums on the subject governing the grant of bail is that there is no strait jacket formula or settled rules for the use of discretion but at the time of deciding the question of “bail or jail” in non-bailable offences Court has to utilize its judicial discretion, not only that as per the settled law the discretion to grant bail in cases of non-bailable offences has to be exercised according to rules and principle as laid down by the Code and various judicial decisions. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, 'necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson. 10. The word “judicial discretion” has been very well explained by an eminent jurist Benjamin Cardozo. In the words of Benjamin Cardozo “The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains. Even so, it is useful to notice the tart terms of Lord Camden that “the discretion of a Judge is the law of tyrants. It is always known, it is different in different men; it is causal, and depends upon constitution, temper and passion. In the best, it is oftentimes caprice, in the worst, it is every vice, folly and passion to which human nature is liable. 11. Deprivation of liberty is tantamount to punishment. The principal that punishment begins after conviction and that every man is deemed to be innocent unless duly tried and duly found guilty has its application to the facts of the instant case in all the fours. The object of the bail is to seek attendance and appearance of the accused at the trial by a reasonable amount of bail. Bail cannot be withheld as a means of punishment. Prison hell destroys the tender sentiments of a person. The applicants have been languishing in the jail for the last more than fourteen months by now. The trial of the case has already commenced. The accused have to prepare for their defence which is of an essence in a criminal trial. The discretion has to be exercised on well based foundations of law and one cannot gets swayed by sentiments. Temper and passion has no role to play in exercising the discretion for the grant of bail. 12. In view of the preceding analysis, the applicants are admitted to bail, subject to the condition that they furnish a personal bond to the tune of Rs. 80,000/- each with a surety of the like amount each to the satisfaction of the Court below on the following terms and conditions:- (i) That they shall present themselves before the Court, if and when asked to do so. (ii) That they shall not leave the territorial limits of the jurisdiction of the trial court without seeking permission. (iii) That they shall not tamper or intimidate the prosecution witnesses. 13. A copy of this order shall be sent to the Trial Court with utmost dispatch. 14. (ii) That they shall not leave the territorial limits of the jurisdiction of the trial court without seeking permission. (iii) That they shall not tamper or intimidate the prosecution witnesses. 13. A copy of this order shall be sent to the Trial Court with utmost dispatch. 14. The Bail applications are disposed of along with connected MPs.