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2023 DIGILAW 694 (JK)

Sajad Ahmad Sangu v. UT of J&K

2023-11-17

SANJAY DHAR

body2023
JUDGMENT : 1. The petitioner is seeking bail in a case arising out of FIR No. 62 of 2023 for offence under Section 306 of IPC registered with Police Station, Ganderbal. 2. Briefly stated, case of the prosecution is that on 19.03.2023, the police received an information that the victim girl has tried to commit suicide by consuming some poisonous substance. On the basis of this information, FIR No. 62 of 2023 for offence under section 309 IPC was registered and investigation was set into motion. During investigation of the case, the victim girl breathed her last on 20.03.2023 in SKIMS, Soura. Thus, offence under section 306 IPC was substituted in place of offence under Section 309 IPC. The police proceeded to record the statements of the witnesses under Section 161 and 164 of Cr.P.C. The postmortem of the dead body of the deceased was conducted and opinion of the doctors was obtained, according to which the death of the deceased girl had taken place due to poisoning. The police, during investigation of the case, found that the deceased girl was being blackmailed by the accused/petitioner herein as he was threatening to upload her photographs on social media. It is for this reason that the deceased consumed poisonous substance and ended her life. Thus, offence under Section 306 IPC has been found established against the petitioner and co-accused. The petitioner was arrested on 19.03.2023 and the challan was laid before the trial court and the trial is stated to be going on. 3. In the instant petition, it has been submitted that the petitioner has been involved in a false and fabricated case. It has been further submitted that the prosecution has failed to produce the mobile data and FSL report with regard to seized mobile phones of the petitioner and the deceased girl along with the charge sheet. Therefore, there is no material on record of the trial court to implicate the petitioner. It has been contended that the investigation of the case has been completed and the challan has been produced on 3rd May, 2023, therefore, keeping the petitioner in custody would not serve any purpose, particularly when he is not alleged to have committed any offence which is punishable with life imprisonment or death sentence. It has been contended that the investigation of the case has been completed and the challan has been produced on 3rd May, 2023, therefore, keeping the petitioner in custody would not serve any purpose, particularly when he is not alleged to have committed any offence which is punishable with life imprisonment or death sentence. Lastly, it has been submitted that the petitioner is ready to abide by any condition that may be imposed upon him in case bail is granted in his favour. 4. The respondent-Union Territory has contested the bail application by stating that the petitioner has not made out any exceptional case so as to entitle him to the grant of bail. It has been submitted that the petitioner is involved in a serious offence carrying severe punishment, therefore, he should not be enlarged on bail. It has been further contended that the prosecution witnesses are yet to be examined and in case the petitioner is enlarged on bail, he may tamper with the prosecution witnesses. It has been submitted that the cell phones of the petitioner and the deceased have been sent for FSL examination but the report is still awaited. According to the respondent, there is enough material on record of the charge sheet to show the involvement of the petitioner in the alleged crime. It is further contended that the petitioner moved a bail application before the Court of Principal Sessions Judge, Ganderbal, which has been dismissed and that there is no change of circumstances after the dismissal of the said bail application. 5. I have heard learned counsel for the parties and perused record of the case including the trial court record. 6. So far as the principles governing the grant or refusal of bail are concerned, the same have been elucidated in a large number of judgments rendered by the Supreme Court and our own High Court. These principles may be summarized as under: i. The gravity of the offence and the nature of the accusation including severity of punishment in the case of conviction; ii. The position and status of the accused vis-a-vis the victims/witnesses; iii. The likelihood of the accused fleeing from justice; iv. The possibility of the accused tampering with the evidence and/or witnesses and obstructing the course of justice; v. The possibility of repetition of the offence; vi. The position and status of the accused vis-a-vis the victims/witnesses; iii. The likelihood of the accused fleeing from justice; iv. The possibility of the accused tampering with the evidence and/or witnesses and obstructing the course of justice; v. The possibility of repetition of the offence; vi. The prima facie satisfaction of the Court in support of the charge including frivolity of the charge; vii. Stage of the investigation; viii. Larger interest of the public or the State. 7. The guidelines relating to grant of bail have been laid down in Sections 437 and 439 of Cr.P.C. While in Section 437 Cr.P.C, certain restrictions and conditions have been laid down for grant of bail by a Court, the power to grant bail under Section 439 Cr.P.C for the High Court or the Sessions Court is wider. The overriding considerations in granting bail as laid down in Sections 437(1) and 439(1) of Cr.P.C, are the nature and gravity of the offence, the frivolity or otherwise of the prosecution case, the position and status of the accused with reference to the victim and witnesses, the likelihood of accused fleeing from justice, the chances of repeating of offence by the accused, the chances of tampering with the witnesses, the stage of investigation and the public interest. 8. The Supreme Court in the case of Mahipal v. Rajesh Kumar and another, (2020) 2 SCC 118 ,while discussing the amplitude and power of the Court under Section 439 Cr. P. C, has observed as under: "The determination of whether a case is fit for the grant of bail involves the balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. No straight jacket formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail, the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. That is a matter for trial. At the stage of assessing whether a case is fit for the grant of bail, the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. That is a matter for trial. However, the Court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued custody of the accused sub-serves the purpose of the criminal justice system.". 9. Keeping in view the foregoing legal position, let us now proceed to consider the merits of the rival submissions made by the parties. It appears that the petitioner had approached the Court of Principal Sessions Judge, Ganderbal, for grant of bail but his application has been dismissed by the said Court in terms of order dated 19.06.2023. According to the respondent UT, there has been no change of circumstances since then. 10. A perusal of the record of the trial court would reveal that after 19.06.2023, the prosecution has examined three witnesses and all these three witnesses are material witnesses in the challan. Therefore, it cannot be stated that no change of circumstances has taken place after the dismissal of the previous application of the petitioner. Even otherwise, the High Court being a superior court has jurisdiction to entertain a bail application in exercise of its powers under section 439 of Cr.P.C even if there is no change of circumstance after the rejection of bail application by the Sessions Court. 11. Now coming to the merits of the instant bail application, as already stated, the allegation against petitioner is that he was in relationship with the deceased girl and prior to date of the occurrence, he had threatened her to upload her photographs on Facebook which prompted the deceased girl to commit suicide. The star witness to the occurrence is PW Ishrat Nazir. The learned counsel for the petitioner has stated that the said witness has, during her cross-examination before the trial court, expressed her ignorance about the occurrence and has stated that she does not even know the petitioner nor has she heard about her name. The star witness to the occurrence is PW Ishrat Nazir. The learned counsel for the petitioner has stated that the said witness has, during her cross-examination before the trial court, expressed her ignorance about the occurrence and has stated that she does not even know the petitioner nor has she heard about her name. Learned counsel for the petitioner has further submitted that the said witness has denied the correctness of her statements recorded under section 164 of Cr.P.C and has stated that she had made the said statement on the asking of police. The learned counsel has also contended that even the other witness to the occurrence, PW Rufaiza, whose statement has also been recorded by the trial Court, has not fully supported the prosecution case. 12. Although at the time of considering the grant or refusal of bail, it is not open to this Court to meticulously analyse and examine the statements of the witnesses recorded by the trial court, yet without deciding merits of the submissions made by learned counsel for the petitioner, there appears to be prima facie substance in the contention raised by the learned counsel, which entitles the petitioner to grant of bail at this stage. 13. Another aspect of the matter that has been highlighted by learned counsel for the petitioner is that whole case of the prosecution is based upon the allegation that the petitioner had threatened the deceased to upload her photographs on social media but along with the challan, the Investigating Agency has not produced the transcript of the data that was retrieved from the cell phone of the petitioner. The trial of the case has progressed substantially but even as on date, the said data has not been produced before the trial court. 14. Having regard to the aforesaid circumstances and keeping in view the fact that the petitioner has been in custody for the last about eight months coupled with the fact that the trial of the case has progressed substantially, denying bail to the petitioner at this stage would amount to inflicting punishment upon him without trial, particularly when there is no material on record to show that the petitioner, if enlarged on bail, would tamper with the prosecution witnesses. 15. 15. For the foregoing reasons, this Court is of the view that the petitioner has been able to carve out a case for grant of bail in his favour at this stage. Accordingly, the application is allowed and the petitioner is admitted to bail subject to the following conditions: I. That he shall furnish personal bond in the amount of Rs. 50,000/ with one surety of the like amount to the satisfaction of the learned trial court; II. That he shall appear before the trial court on each and every date of hearing; III. That he shall not leave the territorial limits of Union Territory of J&K without prior permission of the learned trial court; IV. That he shall not tamper with prosecution witnesses. 16. Observations made hereinabove shall remain confined to the decision of the instant application only and shall not be construed as expression of an opinion on the merits of the case. 17. The bail application shall stand disposed of.