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2019 DIGILAW 364 (JK)

Mohammad Shafi Naikoo v. State of J&K

2019-08-01

RASHID ALI DAR

body2019
JUDGMENT : Rashid Ali Dar, J. Case FIR No.55/2019 under Sections 147, 447, 379, 435 and 427 has been registered by Police Station, Tral, against the petitioners herein. The petitioners apprehending their arrest, moved a petition before the Court of Principal Sessions Judge, Pulwama, for grant of a direction in terms of Section 497-A, which was turned down with the following observations: - “Without going into the merits of the bail application, from the perusal of the report it appears that among other offences, the accused persons are stated to be involved in offence punishable u/s 435 Cr. P.C. This offence is triable by Special Judge. The bail in anticipation of arrest cannot be granted in this offences as there is bar for grant of bail in anticipation of arrest in such offence. Special provisions for grant of bail mentioned u/s 497-B are provided for such offence. The present bail application is therefore not maintainable on the sole ground that the accused are allegedly involved in offence which is punishable under section 435 Cr. P. C. The bail application shall therefore stand dismissed. The dismissal of the bail application will however not prevent applicants/accused from moving the appropriate application for grant of bail as provided under law.” 2. This order, in terms of the instant petition, is stated to be bad and indulgence of this Court is sought for grant of bail in the said FIR while pleading that: (i) The Police Station, Tral registered FIR No.55/2019 for offences U/S 147, 447, 379, 435, 427 RPC against the petitioners herein. The FIR has been registered on a complaint by Ghulam Nabi Zaboo S/o Ghulam Hassan Zaboo R/o Tral Balla and Javed Ahmad Lone S/o Shaban Lone R/o Chankitar Tral and others, with whom there is a civil litigation going on before the Dstrict Judge, Pulwama with regard to suit property comprising of land measuring 05 kanals and 08 marlas. (ii) The suit was filed in the year 2012 before the Court of Munsiff, Tral, with regard to land measuring 05 kanals and 08 marlas situated at Lalpora Tral and the trial court passed an order of status quo on 11.06.2012. In the meanwhile, because of valuation, the suit was sent by the trial court to the court of Principal District Judge, Pulwama, in view of the order passed on 23.09.2015. In the meanwhile, because of valuation, the suit was sent by the trial court to the court of Principal District Judge, Pulwama, in view of the order passed on 23.09.2015. The trial of the suit is now pending before the Court of Principal District Judge, Pulwama. The Principal District Judge, Pulwama, entertained application of the petitioners for implementation of the order of status quo passed by Munsiff, Tral and SDPO, Pulwama, was directed to ensure that the order passed by the trial court on 11.06.2012 is implemented in letter and spirit. (iii) Because of pendency of this application and the order passed by ld. District Judge, Pulwama, for implementation of order of status quo, a false complaint was filed on 14.07.2017 under Section 147, 447, 379, 435, 427 RPC before Police Station, Tral against the petitioners, by Ghulam Nabi Zaboo and Javaid Ahmad Lone. (iv) As per the report, a tin shed which was constructed in violation of court direction in the suit property is alleged to have been demolished and then set on fire. (v) An application was filed for grant of bail in anticipation of arrest by the petitioners before ld. District & Sessions Judge, Pulwama, who after calling report, dismissed the bail application by holding that offence under Section 435 is triable by a Special Judge and as such the bail application in anticipation of arrest cannot be granted because there is bar for grant of bail in anticipation of arrest in such offences as provided U/S 497-B. (vi) The order of rejection of bail is not in accordance with law. The petitioners have a right to approach this Court for grant of bail in anticipation of arrest. (vii) The petitioners and the complainants of FIR No.55/2019 are already litigating in the civil court where order of status quo has been passed by the trial court vis-à-vis same piece of land where it is alleged that the offence was committed by the petitioners. (viii) Section 497-A is a provision which deals with grant of bail in anticipation of arrest and this provision does not create a bar for grant of bail in anticipation of arrest even if person is charged U/S 435 RPC. (viii) Section 497-A is a provision which deals with grant of bail in anticipation of arrest and this provision does not create a bar for grant of bail in anticipation of arrest even if person is charged U/S 435 RPC. Section 497-B provides that no person shall be released on bail unless prosecution has been given an opportunity to oppose the application of the accused for release on bail and the court is satisfied that the accused is not guilty of such offence. Section 497-B will come into play when the accused has been arrested. So far as provision of bail in anticipation of arrest is concerned, Section 497-B will not have an application and if safeguards provided for grant of bail to an accused person who is charged U/S 435, can be also adhered to by the Sessions Judge while considering application for grant of bail in anticipation of arrest. (ix) The mischief of Section 497-B would come into play only when the investigation has not been completed within two weeks. The FIR has been registered on 14.07.2019 and the investigation has not been completed till date, therefore, Section 497-B has not application while considering the bail application. (x) The petitioner No.3, 4 and 6 are government employees while as petitioner No.5 is a retired government employee. The petitioners have not committed any offence much less offences as mentioned in the FIR N o.55/2019. The allegations levelled against the petitioners are false and concocted. (xi) This Court in Abdul Rahim and others Vs. State, has held that for grant of bail in anticipation of arrest U/S 497-A, the persons apprehending arrest, can directly approach the High Court for seeking anticipatory bail without approaching the court of Special Judge appointed under the Code for trial of offences which are special offences under the Code. (xii) Till date neither challan has been produced nor investigation has been completed in the case, as such, the petitioners are entitled for bail in anticipation of arrest. 3. The other-side was put to notice. Mr. Mir Suhail, AAG, appeared and sought file to file objections and status report of investigation. On behalf of complainant, Mr. J. H. Reshi, Advocate, prayed for an opportunity of being heard for making certain submissions. However, Mr. Qureshi insists for grant of interim relief, which according to him can be still considered. 4. Heard learned counsel for the parties. 5. Mir Suhail, AAG, appeared and sought file to file objections and status report of investigation. On behalf of complainant, Mr. J. H. Reshi, Advocate, prayed for an opportunity of being heard for making certain submissions. However, Mr. Qureshi insists for grant of interim relief, which according to him can be still considered. 4. Heard learned counsel for the parties. 5. Mr. Qureshi, learned Sr. Advocate, appearing for the petitioners submitted that the observations made by learned Sessions Judge while dismissing the application are erroneous and against the purport of Section 497-A read with Section 497-B of Cr. P. C. He in this regard placed reliance on the judgment of a Coordinate Bench of this Court in “Abdul Rahim & Ors. Vs. State”, KLJ 1996 479. 6. The plea taken therein on behalf of State was that the accused cannot derive benefit in terms of Section 497-A unless they are in custody. Same has been turned down after observing that the argument carries no force as the investigation includes all the proceeding under the Code for collection of evidence, conducted by a police officer or by any person (other than a magistrate) who is authorized by a magistrate in this behalf. The concept of bail has been highlighted and it is stated that under Section 259-A, investigation is to be completed within a period indicated and the trial thereafter concluded within a span of three months. The Court also took into account the factum of case being registered on 07.07.1995 and one of the accused having been taken into custody on 05.11.1995. No instructions had been sought from District Superintendent of Police after making a report for the causes of delay. An affidavit had been placed on record wherein Mst. Roshni, the occupant of the house in question on behalf of the brother at the material time, had exculpated the applicant/accused. The Court, however, observed that it was for the trial court to see its evidentiary value. The direction given by the Sessions Court that the petitioners be arrested was taken as a condition imposed without any legal basis. The revisional jurisdiction of the Court had been invoked to challenge a order passed by Sessions Judge, Udhampur, whereby he had refused to grant bail to the petitioners in anticipation of arrest in view of application of bar under Section 497-B Cr. P. C. 7. A glance at Section 497-B Cr. The revisional jurisdiction of the Court had been invoked to challenge a order passed by Sessions Judge, Udhampur, whereby he had refused to grant bail to the petitioners in anticipation of arrest in view of application of bar under Section 497-B Cr. P. C. 7. A glance at Section 497-B Cr. P. C may be quite apposite: “497-B. Special providing regarding bail.—Notwithstanding anything contained in this Code but subject to the provisions of section, 498, no person accused of an offence punishable under Section 152, 153-A, 295, 295-A, 296, 297, 298, 435, 436 or 505 of the State Ranbir Penal Code shall be released on bail unless— (a) the prosecution has been given an opportunity to oppose the application for such release; and (b) the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence: Provided that the accused shall be released on bail if the investigation has not been completed within two weeks. 8. Mr. Qureshi, learned Sr. Advocate, has also taken reliance on the order dated 29.07.2019 passed by Principal Sessions Judge on an application filed and submitted on that the final report has not been submitted. He has also made an attempt to lend support to his argument that there is a bona fide dispute with regard to a matter and the Civil Court had ordered for implementation of order of status quo passed in civil litigation filed by one of the petitioners, namely, Mohammad Shafi, against the complainants. 9. Per contra, it has been submitted on behalf of the other-side that it is not the true purport of the Section 497-B directing that the accused would have an entitlement to bail merely because the investigation is not completed within two weeks. A concession cannot be granted in favour of a party/accused who thwarts the course of justice and indulges in commission of heinous offences has to be born in mind. Reference is made to the allegations of the FIR to take note of the fact that the petitioners are trying to dispossess the complainant from the property which is in his lawful possession, according to other side. Some documents have also been referred along with photographs which may not need a discussion herein in view of the question of law involved and what is being attributed to the petitioners in terms of First Information Report. Some documents have also been referred along with photographs which may not need a discussion herein in view of the question of law involved and what is being attributed to the petitioners in terms of First Information Report. It is also being added that the judgment relied on by the petitioners would have no application as the Court in said case had examined the issue in exercise of its powers under Section 435 Cr. P.C. and had framed the opinion while taking into consideration other factors too. 10. Considered the rival arguments. 11. At the very outset, it may require to be noted that revisional jurisdiction is not being pressed into service by the petitioners by medium of instant petition. A motion has been presented for grant of relief in favour of the petitioners while pleading that the order passed by learned Sessions Judge was not warranted in the facts and circumstances. To put it concisely, emphasis is being laid on the argument that a direction can be passed in terms of Section 497-A Cr. P.C. nonetheless the fact that the offences alleged to have been committed may be special and triable by a Special Court. More emphatically Section 497-B is pleaded vests a right by default on failure of investigating agency to conclude the investigation 12. Pertinent it may be to have a reference of Section 259-A Cr. P.C. which provides special procedure in respect of certain offences indicated therein and lays down that trial in such cases shall be conducted by a Special Judge to be appointed by the Government in consultation with the High Court. The trial of the offence has to commence within one week from the date of presentation of report under Section 173 Cr. P.C and has to be completed within a period of three months. The proceedings have to be held on day to day basis. 13. Section 167 of Cr. P.C, as may also be relevant herein to refer, provides for procedure when investigation cannot be completed in twenty-four hours. It lays an obligation on Court to grant bail if the investigating agency has not completed the investigation within the Statutory period prescribed therein. The accused has an indefeasible right of bail and his custody cannot be authorized for further period. 14. Section 497-B Cr. It lays an obligation on Court to grant bail if the investigating agency has not completed the investigation within the Statutory period prescribed therein. The accused has an indefeasible right of bail and his custody cannot be authorized for further period. 14. Section 497-B Cr. P.C, however, provides the prosecution to be given opportunity of being heard to oppose the application for release of a person indicted in the commission of offences punishable under Section 152, 153-A, 295, 295-A, 296, 297, 298, 435, 436 or 505 RPC and the Court has to record its satisfaction for believing that he is not guilty of such offence. The failure on the part of investigating agency to complete the investigation within two weeks, has been taken care while laying down: “Provided that the accused shall be released on bail if the investigation has not been completed within two weeks.” 15. The question which, therefore, arises for determination is whether in the light of what is being stated in the Proviso quoted above regarding grant of bail, the mechanism provided for authorization of custody and default bail in terms of Section 167 Cr. P.C. would be rendered redundant. The argument of learned counsel whereby it is being contended that the Proviso would be attracted even when a accused has not been taken into custody in connection with commission of special offence, has already been noted above and requires to be answered now. On a comparative analysis what is provided in terms of Section 167 and 497-B of Cr. P.C, it can be stated that the said provisions have been enacted to take care of two different situations. Section 167 of Cr. P.C prescribes a general rule regarding maximum period for which an accused can be remanded to custody during investigation. Section 497-B Cr. P.C unambiguously provides that detention of a person accused of special offence is not authorized beyond a period of two weeks as the investigating agency is required to complete the same within shortest possible time. The trial too has to be concluded within a period of three months. An accused, in terms of Section 167 Cr. P.C, is entitled to claim bail by default in a case wherein commission of offences is other than special offences noted in Section 497-B Cr. P.C is alleged. In the offence covered by Section 497-B Cr. The trial too has to be concluded within a period of three months. An accused, in terms of Section 167 Cr. P.C, is entitled to claim bail by default in a case wherein commission of offences is other than special offences noted in Section 497-B Cr. P.C is alleged. In the offence covered by Section 497-B Cr. P.C, the right to get bail by default has been modified and the accused held entitled to such right only after two weeks if the investigation is not completed. The argument of the learned counsel for the petitioners requires to be considered, however, from a different angle also. His point is that whatever fact situation may be in the conduct of investigation, antecedents of the accused, or the seriousness of the offence, the accused is entitled to bail in anticipation of his arrest and the Court is required to issue direction in terms of Section 497-A Cr. P.C. Rigour of section 497-B. Cr. P.C, according to him, would not be applicable in a case where investigating agency fails to complete the investigation and final report, if any, required to be submitted before the Criminal Court. 16. In my opinion the plea so raised has no sound basis and cannot be accepted. Merely because there is failure of the investigating agency to submit final report in terms of Section 173 Cr. P. C would not ipso facto vest a right in favour of an accused, by default, to claim concession in terms of Section 497-A Cr. P. C. It needs to be underscored that a direction in terms of Section 497-A Cr. P. C cannot be granted on mere asking of a party while remaining unmindful of how it would affect the investigation or the course of justice. The Court is under an obligation to weigh other factors relevant for grant of bail. It may be proper herein to refer to the observations of a Coordinate Bench of this Court in “State Vs. The Court is under an obligation to weigh other factors relevant for grant of bail. It may be proper herein to refer to the observations of a Coordinate Bench of this Court in “State Vs. Sat Paul and Ors.” S. L. J. 1989 J&K 270, wherein approach of learned Sessions Judge in granting bail in a case where the accused had been alleged having committed offences under Section 307/64 and 341 RPC: “While granting anticipatory bail the court dealing with the case has to see the nature and seriousness of the accusations, the nature of the evidence in support of the accusation, severity of the punishment which the conviction will entail, the character, behavior and standing of the accused, a reasonable possibility of the presence of the accused not being secured at the trial, the danger of the alleged offence being continued or replaced, the danger of witnesses being tampered with, the larger interests of the public or the state, the apprehension of the accused being wrongly implicated in false case for the purposes of disgracing him and the possibility of the involvement of the accused on the grounds of political rivalry, and similar other considerations. The power to grant anticipatory bail can be exercised only in cases involving non-bail able offences and the court must be satisfied that if the anticipatory bail is refused, an irreparable wrong or injustice might result which could be avoided only by the grant of anticipatory bail. Normally notice for application of anticipatory bail should be given to the state and the court before passing the order should apply its mind to the allegations made in the petition and examines the materials available with the police or brought before it. 17. In Jai Prakash Singh Vs. State of Bihar and anr. etc.; 2012 (2) Criminal Court Cases 640, their Lordships of Hon’ble Apex Court have held: “…….neither anticipatory bail nor regular bail can be granted as a matter of rule. The anticipatory bail being an extraordinary privilege should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after proper application of mind to decide whether it is a fit case for grant of anticipatory bail. “…..Also anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. The judicial discretion conferred upon the court has to be properly exercised after proper application of mind to decide whether it is a fit case for grant of anticipatory bail. “…..Also anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It cannot be considered as an essential ingredient of Article 21 of the Constitution. And its non-application to a certain special category of offences cannot be considered as violative of Article 21. 18. Abdul Rahim’s case (supra) does not lay down an absolute proposition of law that a direction is to be passed in terms of Section 497-A Cr. P. C if the investigating agency is not in a position to submit final report within two weeks referred in Section 497-B Cr. P. C. In the said case, the Court has taken into consideration distinct facts including the affidavit placed on record of Mst. Roshni and the failure on the part of investigating agency to place a report before District Superintendent of Police requesting for extension of time to conclude the investigation. Quite apposite it may be to refer to the principle laid down by Hon’ble Supreme Court in “Kalyan Chandra Sarkar Vs. Rajesh Ranjan alias Pappu Yadav and another, (2005) 2 SCC 42 , regarding applicability of a precedent in criminal cases: 42. While deciding the cases on facts, more so in criminal cases the court should bear in mind that each case must rest on its own facts and the similarity of facts in one case cannot be used to bear in mind the conclusion of fact in another case (See: Pandurang and Anr. vs. State of Hyderabad ( 1955 1 SCR 1083 ). It is also a well established principle that while considering the ratio laid down in one case, the court will have to bear in mind that every judgement must be read as applicable to the particular facts proved or assumed to be true. Since the generality of expressions which may be found therein are not intended to be expositions of the whole of the law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. A case is only an authority for what it actually decides, and not what logically follows from it. Since the generality of expressions which may be found therein are not intended to be expositions of the whole of the law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. A case is only an authority for what it actually decides, and not what logically follows from it. See: (1) Quinn vs. Leathem, State of Orissa vs. Sudhansu Sekhar Misra, () Ambika Quarry Works v. State of Gujarat.” 19. Section 497-A Cr. P. C is, admittedly, aimed to check gross misuse of power of arrest vested with police but while exercising discretion, the Court has to ensure that a fair and free investigation does not become a casualty. A balance has thus to be maintained between two competing interests of individual and the society. 20. While examining scope of applicability of Sections 497-A and 497-B Cr. P. C, it can be safely stated that the later provision has to be pressed into service to extenuate the bar created for recording satisfaction before grant of bail about the existence of reasonable grounds for believing that the person seeking bail is not guilty of such an offence/offences but bail in anticipation of arrest may not be granted as a matter of course where the investigation is not completed within the stipulated period. Grant of bail in anticipation of arrest even in special offences would thus be governed by general provisions in this regard. The contention raised on behalf of the petitioners is thus turned down and it held that failure on behalf of police to complete the investigation has not conferred upon petitioners a right to seek a direction in terms of Section 497-A Cr. P. C and there being an obligation on the Court to grant the same. If such an argument is accepted, that would lead to anarchy and encourage the perpetrators of crime and give an incentive to absconders to be away from arm of law and to claim bail simply for non-completion of investigation within two weeks. 21. The entitlement of the petitioners to bail under Section 497-A Cr. P. C would require perusal of case diary and furnishing of an opportunity to the other-side to file objections, which can be done conveniently in case the learned trial court is asked to examine the matter afresh. 21. The entitlement of the petitioners to bail under Section 497-A Cr. P. C would require perusal of case diary and furnishing of an opportunity to the other-side to file objections, which can be done conveniently in case the learned trial court is asked to examine the matter afresh. It may be necessary at this stage to state that the observations made by learned Sessions Judge in terms of which application of the petitioners has been dismissed, are not in consonance with the principles laid down in Abdul Rahim’s case and in the ends of justice it is deemed proper to exercise the revisory jurisdiction and so the petition filed by the petitioners is treated as a revision petition and the order passed by learned Principal Sessions Judge, Pulwama, on 22.07.2019 dismissing the application for grant of anticipatory bail of the petitioners, is set aside. The petitioners shall be at liberty to approach the Court of learned Sessions Judge, Pulwama, for grant of bail afresh and learned Sessions Judge is directed to pass orders thereon without getting influenced by the observations made hereinabove. 22. Copy of the order be sent to the learned Sessions Judge, Pulwama, for information and compliance.