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2020 DIGILAW 415 (JK)

Mushtaq Ahmad Bahadur v. Union Territory of JK

2020-08-21

ALI MOHAMMAD MAGREY

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JUDGMENT By medium of the instant application, the applicants are seeking bail in anticipation of their arrest in connection with case bearing FIR No. 147/2020, registered in Police Station, Rangreth, for the commission of offences punishable under Sections 447, 354, 323 and 382 of the Indian Penal Code (IPC). 2. The background facts leading to the filing of the instant application, as stated by the applicants in their application, are that the applicants claim that the complainant and her family members barged their into private property and resorted to physical violence/ abuse, while trespassing the right of the applicants for which an FIR, bearing No. 146/2020, came to be registered against the complainant and her husband in Police post Rangreth, for the commission of offences punishable under Sections 452, 427, 323 and 354 of the Indian Penal Code. It is pleaded that as a counter to the FIR aforesaid, the complainant lodged a false complaint against the applicants vide FIR No. 147/2020 in Police Station, Rangreth, Srinagar, for the commission of offences punishable under Sections 447, 354, 323 and 382 of the Indian Penal Code (IPC). The applicants, accordingly, immediately preferred an application before the Court of learned Sessions Judge, Srinagar, for seeking bail in anticipation of arrest in connection with the aforesaid case which was granted to them on 3rd of June, 2020. However, thereafter, as stated, in terms of order dated 30th of June, 2020, the said interim bail was rejected by the Court below on the report filed by the Investigating Officer (IO) of the case alleging non-cooperation on part of the applicants. Faced with the above circumstances, the applicants have filed the instant application before this Court seeking bail in anticipation of their arrest in the aforesaid case. 3. Heard the learned counsel for the parties, perused the ‘Case Diary’ produced by Mr B. A. Dar, the learned Senior Additional Advocate General and considered the matter. 4. A perusal of the order dated 30th of June, 2020, as passed by the Court of learned Sessions Judge, Srinagar; whereby the interim bail granted by the said Court was rejected, reveals that the same was passed having regard to the report filed by the police authorities concerned alleging non-co-operation on the part of the applicants. 4. A perusal of the order dated 30th of June, 2020, as passed by the Court of learned Sessions Judge, Srinagar; whereby the interim bail granted by the said Court was rejected, reveals that the same was passed having regard to the report filed by the police authorities concerned alleging non-co-operation on the part of the applicants. The Court below, in view of the material placed before it, was also of the opinion that the accused/ applicants are required for custodial interrogation in view of the facts and circumstances of the case. Accordingly, while rejecting bail in favour of the accused/ applicants in anticipation of their arrest, the learned Sessions Court directed the Investigating Officer (IO) to proceed with the case in a fair and impartial manner and collect the best available evidence as early as possible. This proposition of the learned Sessions Judge, in no manner whatsoever, cannot be said to be an erroneous one, moreso, when the earlier interim bail was also granted by the same Court. It is only because of the material that was brought on record by the Investigating Officer (IO) that the Court below was compelled to reject the interim bail in favour of the accused/ applicants. 5. Looking at the instant case from another perspective, it is settled principle of law in the process of granting bail that the Court concerned should be satisfied that the accused being enlarged bail will not be in a position to tamper with evidence. When allegations of tampering of evidence are made, it is the duty of the Court to satisfy itself as to whether those allegations have basis and if the allegations are not found to be concocted it would not be a proper exercise of jurisdiction in enlarging the accused on bail. This, if allowed, will encourage the litigant to make half a dozen applications on the same point without any new factor having arisen after the first one was rejected. 6. Grant or refusal of regular bail or anticipatory bail has to be made having regard to the nature of the crime, the circumstances under which it was considered, the background of the accused, the possibility of his jumping bail, the impact that his release may make on the prosecution witness, its impact on the society and possibilities of retribution. 6. Grant or refusal of regular bail or anticipatory bail has to be made having regard to the nature of the crime, the circumstances under which it was considered, the background of the accused, the possibility of his jumping bail, the impact that his release may make on the prosecution witness, its impact on the society and possibilities of retribution. The analogy for entertaining a subsequent or second application for bail or anticipatory bail when it was earlier rejected, the consideration would be the same. The change of the fact situation may differ from case to case. Hon’ble the Supreme Court in case titled ‘State of Maharashtra v. Captain Buddihikota Subharao: MANU/SC/054/1989’, while dealing with a case for the grant of bail in almost the similar circumstances, observed that ‘when we speak of change, we mean a substantial one, which has a direct impact on the earlier decision and not merely a cosmetic change which are of little or of no consequence.’ 7. Viewed in the above context; on consideration of the facts of the case; and the law governing the subject of grant of bail, I am of the view that the successive or subsequent bail application or anticipatory bail application on the same very facts/ grounds on which the earlier one was rejected by the Court of competent jurisdiction cannot be entertained, unless it is shown that there is a substantial change in the fact situation or in the law, which requires earlier view being interfered with or where the earlier finding has become obsolete. Change in fact situation would never mean any new or additional ground which was earlier available to the accused, but that was not taken on the earlier occasion. In the case on hand, there is no change of circumstance, whereas, it is a case whereupon consideration of the material on record and hearing the submissions of the counsel for parties, the Court of competent jurisdiction consciously rejected the prayer for anticipatory bail of the applicants. There is nothing on record nor any argument has been advanced on behalf of the applicants to show that there has been any substantial change of circumstances after rejection of the earlier anticipatory bail application, which would necessitate reconsideration of the prayer afresh. 8. There is nothing on record nor any argument has been advanced on behalf of the applicants to show that there has been any substantial change of circumstances after rejection of the earlier anticipatory bail application, which would necessitate reconsideration of the prayer afresh. 8. Apart from the above, if appreciated in the perspective of the claim, I am of the view that the Courts should be too slow to thrive the second application of a party for anticipatory bail where the earlier one has been rejected and there is no substantial change of circumstance or event. Further, repetition of prayer for anticipatory bail after rejection by the competent Court after invoking the power of review of the decision of the earlier Court may lead to judicial anarchy about which caution has been sounded by the Apex Court of the country in umpteen judicial dictums. 9. In view of the above, I do not find any merit in this application filed by the applicants seeking bail in anticipation of their arrest and, as such, same shall stand dismissed accordingly. It is, however, made clear that this order shall not come in the way of the applicants/ accused to approach the Court of competent jurisdiction for seeking regular bail and that the observations made hereinabove shall not be deemed to be any comment upon the merits of the case. 10. Bench Secretary of this Court to return the ‘Case Diary’ to Mr Dar, learned Senior Additional Advocate General.