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2018 DIGILAW 963 (JK)

Javed Iqbal v. State of J&K

2018-12-11

GITA MITTAL, TASHI RABSTAN

body2018
JUDGMENT : Gita Mittal, J. IA No.1/2018 1. Pursuant to our last order, a report dated 7th December, 2018 has been received from the office of Senior Superintendent, District Jail, Jammu. 2. We have heard Mr. P.N. Raina, learned senior counsel who appears for the appellant and Mr. A.M. Malik, Dy. AG for the State. 3. The appellant was implicated in FIR No.159/1998 registered at Police Station, Bhaderwah for the commission of offence under Section 302/34 RP.C. The appellant was subjected to trial, where after vide judgment dated 9th of May, 2012, he was convicted for commission of offence qith which he was charged. An order dated 11th May, 2012 was passed whereby the appellant was sentenced to rigorous imprisonment for life and a fine of Rs.10,000/- by the Principal Sessions Judge, Jammu. 4. As per the report dated 7th December, 2018 received from the Senior Superintendent, District Jail, Jammu, the appellant remained in custody for six years, six months and 28 days. The report dated 7th December, 2018 received from the Senior Superintendent, District Jail, Jammu makes a shocking disclosure to the effect that “As far as the first lodgment of the accused in Sub Jail, Bhaderwah, it is submitted that there is no documentary proof is available in the case file of the appellant that he was shifted to District Jail Jammu from Sub Jail, Bhaderwah.” The report does discloses that the appellant was brought to District Jail, Jammu on 9th May, 2012 by one ASI Tara Chand of District Police Lines, Jammu for lodging the appellant/accused in compliance to Hon’ble Principal Sessions Judge, Jammu’s order dated 9th May, 2012. 5. It is submitted by Mr. Raina, learned senior counsel, who appears for the appellant that the alleged incident in which the appellant was implicated occurred on 27th June, 1998 and the FIR No.159/1998 was registered at Police Station, Bhaderwah on 28th June, 1998. It is submitted by Mr. Raina, learned senior counsel that the appellant was arrested on the same day and lodged in Sub Jail, Bhaderwah. Thereafter vide order dated 31st August, 1999 passed in (Criminal Transfer Application) CRTA No.114/1998 by this Court, the trial was transferred to Principal Sessions Judge, Jammu. As a result, the appellant was transferred from Sub Jail, Bhaderwah to District Jail, Jammu. 6. We are also informed by Mr. Thereafter vide order dated 31st August, 1999 passed in (Criminal Transfer Application) CRTA No.114/1998 by this Court, the trial was transferred to Principal Sessions Judge, Jammu. As a result, the appellant was transferred from Sub Jail, Bhaderwah to District Jail, Jammu. 6. We are also informed by Mr. P.N.Raina, learned senior counsel appearing for the appellant that vide order dated 16th May, 2001 passed by the trial Court, the appellant was admitted to bail. Thereafter he was arrested upon his conviction on 9th May, 2012. There is nothing on record to controvert this position. 7. We have been informed by the Senior Superintendent, District Jail, Jammu that the appellant has not been admitted either to bail as under trial or granted any parole nor granted suspension of sentence. 8. It is further confirmed that conduct of the appellant remained satisfactory in the Jail and he has not been awarded any punishment for any jail offence. In view of the above, the appellant as on date has remained in custody for a period of more than nine years. 9. Be that as it may, the present appeal is of the year 2012 and is yet to be heard. The cause list of the Court shows that it is not possible to grant expeditious hearing in the present appeal. 10. There is no material on record that the appellant/applicant has been guilty of protracting the trial. 11. The available record and the narration of facts noted herein above, suggest that there is little possibility of the appellant absconding from justice. 12. We have considered the submissions made by learned counsel for the parties. The Supreme Court in the case reported as AIR 2001 SC 1528 Akhtari Bi v. State of M.P., has held that if the appeal is pending for five years and there is no chance of appeal being heard in near future then in such a case the applicant/appellant should be enlarged on bail. In this regard, reference may also be made to the principles laid down in AIR 2017 SC 1568 Sandeep alias Raja Acharya v. State of Orissa. It is also not in dispute that the appellant/applicant has served the jail sentence for a period of more than nine years. There appears to be little possibility of present appeal being heard immediately. 13. It is also not in dispute that the appellant/applicant has served the jail sentence for a period of more than nine years. There appears to be little possibility of present appeal being heard immediately. 13. In view of the above, we allow the application and direct as follows:— (i) the appellant shall be released from custody subject to his furnishing the bail bond in the sum of Rs.50,000/- with one surety of the like amount to the satisfaction of the Registrar Judicial of this Court. The remaining sentence imposed upon the appellant by order dated 11th May, 2012 shall be suspended till further orders of this Court. (ii) Upon release, the appellant shall report to the Station House Officer of the Police Station, Bhaderwah at any time during the day light hour on every second Saturday of the month this application is allowed in the above terms. A copy of this order shall be sent to the Senior Superintendent, District Jail, Jammu and Station House Officer, Bhaderwah to ensure compliance.