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2018 DIGILAW 471 (JK)

Ghulam Nabi Mir v. State of J&K

2018-07-04

M.K.HANJURA

body2018
JUDGMENT : 1. By the medium of this application, the applicant seeks his release on bail in FIR No.11/2015 of Police Station Crime Branch, Kashmir, registered against him for the commission of offences punishable under Sections 420, 467, 468 and 471 of the Ranbir Penal Code (RPC). The applicant moved an application for bail before the learned Principal Sessions Judge, Baramulla, earlier in point of time, which, by an order dated of the said Court order 18th of April, 2018, came to be rejected. 2. The facts, leading to the arrest of the applicant, are that the Crime Branch, Kashmir, received a written communication from the Personal Officer to the Director, School Education Officer, Kashmir, stating therein that it has come to his notice that the applicant managed to join in the office of the Chief Education Officer (CEO), Baramulla, on a fake and forged order of appointment purported to have been issued by the General Administration Department, Civil Secretariat, Srinagar. On this information, a case bearing FIR No.11/2015 for the commission of offences detailed hereinbefore was registered against the applicant with which the investigation ensued. During the course of the investigation of the case, it came to surface that the applicant made the Education Department to believe that he was genuinely appointed as a ‘Lab Bearer’ and that he joined on the post way back in the year 2012. It also, came to the fore during the investigation proceedings, that the applicant had provided a fake and forged appointment order to a gullible candidate, namely, Aadil Manzoor Dar S/o Manzoor Ahmad Dar R/o Dohipora, Shopian, against a consideration amount of Rs.3 lacs. It is further stated that the applicant succeeded to man the post for some time on the basis of the order mentioned hereinabove. 3. Heard and considered. 4. Risking repetition, what requires to be repeated and reiterated here is that the learned Principal Sessions Judge, Baramulla, has rejected the bail application of the applicant. The question that, arises for consideration, therefore, 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. The question that, arises for consideration, therefore, 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 position has been made explicitly 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.” 5. 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.” 5. 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 in question, 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. 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).” 6. Looking at the order of the learned Principal Sessions Judge, Baramulla, whereby the application of the applicant for the grant of bail in his favour has been rejected, the prosecution version is that the applicant produced a fake and forged certificate, on the basis of which, he was appointed as ‘Lab Bearer’. 7. Looking at the order of the learned Principal Sessions Judge, Baramulla, whereby the application of the applicant for the grant of bail in his favour has been rejected, the prosecution version is that the applicant produced a fake and forged certificate, on the basis of which, he was appointed as ‘Lab Bearer’. 7. 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 of 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 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 unconvicted 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/she has not been convicted or that in any circumstances, he/she should be deprived of his/her liberty upon only the belief that he/she 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. 8. The term “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. 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”. 9. 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 applicant has been languishing in the jail for the last more than three years by now. The trial of the case has already commenced. The accused has to prepare for his defense which is of an essence in a criminal trial. Bail cannot be withheld as a means of punishment. Prison hell destroys the tender sentiments of a person. The applicant has been languishing in the jail for the last more than three years by now. The trial of the case has already commenced. The accused has to prepare for his defense which is of an essence in a criminal trial. The discretion has to be exercised on well based foundations of law and one cannot get swayed by sentiments. Temper and passion has no role to play in exercising the discretion for the grant of bail. 10. The entire case appears to be based on documentary evidence and the custody of the applicant, under such set of circumstances, is not justified. The applicant cannot be refused bail for the purpose of giving him a taste of imprisonment as a lesson. True it is that the punishment carried for an offence punishable under Section 409 of the Ranbir Penal Code (RPC) is 10 years or life imprisonment, but bail cannot be refused in such a case as the law is lucid and clear on that count. It provides that death or imprisonment for life is one type of punishment and imprisonment for life or imprisonment for a lesser term is another kind of punishment. These two punishments cannot be equated and treated on par and in all cases where the punishment provided is imprisonment for life or for a lesser term, grant of bail is the rule and refusal an exception. 11. Taking into consideration the above, the application is allowed and the applicant is admitted to bail in case FIR No.11/2015, registered at Police Station Crime Branch, Kashmir, for the commission of offences punishable under Sections 420, 467, 468 and 471 of the Ranbir Penal Code (RPC) subject, however, to the following conditions: I. That the accused shall execute a personal bond to the tune of Rs.50,000/- with a surety of the like amount before the Incharge Jail where he is lodged at the moment; II. He shall not tamper with the prosecution evidence; III. He shall not leave the territorial jurisdiction of the State without prior permission of the learned Principal Sessions Judge, Baramulla and shall present himself before the trail Court, as and when required. 12. Bail Application disposed of as above.