Recently, the Jammu and Kashmir High Court granted bail to an accused person involved in the offences under Sections 140/109/118(2)/189/191/238 of Bharatiya Nyaya Sanhita, 2023 (for short, “BNS”) while observing that mere gravity of offence and severity of punishment is no ground for rejection of bail especially when there is nothing to suggest that if released on bail, accused is likely to abscond with a view to evade the trial and where there is no material on record to show that in the event of bail, the accused is likely to tamper with the prosecution witnesses or evidence.
Brief facts:
The factual matrix of the case is that while the injured person was working in the house of Makhan Din, the accused Masoom Ali and Shaiya came there on a motorcycle and went away. Later on, accused Maskeen Ali, Makhnu, Din, Bawa, Maskeen, and Aloo came in a car, attacked him, put him inside the car, and started beating him with fists and blows. It was also alleged that the accused forcibly gave him a capsule and snatched his phone. It was further alleged that the accused person, with the intention to kill, caught hold of him and cut his right forearm and left index finger with a sickle. Furthermore, the accused person put the injured person in the same car, and while the car was being driven rashly and negligently, it developed a fault. They stopped the car. Meanwhile, Punjab Police came there and he narrated the whole incident to the Police, whereafter the accused persons fled away. Thereafter, the Petitioners were taken into custody after the registration of the FIR and charge sheet for the offences under Sections 140/109/118(2)/189/191/238 of Bharatiya Nyaya Sanhita, 2023 (for short, “BNS”) were filed. The bail application was filed by the Petitioner before the trial court, which was declined on the ground of the gravity of the offence and the severity of the punishment attached thereto. Aggrieved by this, the present petition has been filed.
Observations of the Court:
The Court observed that bail or jail belongs to the blurred area of criminal justice system, which largely hinges on the hunch of the Bench, otherwise called the judicial discretion. Personal liberty of a citizen is too precious a value of our constitutional system recognized under Article 21 of the Constitution. Court should take cognizance of the fact that liberty of an individual whose involvement has not been established in the commission of an offence, should not be lightly dealt with, for bail is a cardinal rule and jail is an exception.
It was furthermore observed that “the seriousness of a charge is, no doubt, one of the relevant considerations while considering bail pleas but that is not the only test or the factor. If the same is reckoned as the only test or the factor it may tantamount to imbalancing the constitutional rights and would rather be recalibration of the scales of justice. Provisions of Cr.P.C., now BNSS, confer discretionary jurisdiction on criminal Courts to grant bail to accused pending trial or in appeal against conviction and since jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society.”
The Court noted that mere gravity of offence and severity of punishment is no ground for rejection of bail especially when there is nothing to suggest that if released on bail, accused is likely to abscond with a view to evade the trial and where there is no material on record to show that in the event of bail, the accused is likely to tamper with the prosecution witnesses or evidence.
The decision of the Court:
Based on these considerations, the Court directed the Petitioners to be released on bail.
Case Title: Maskeen Din and ors. V. UT of J&K
Coram: Hon’ble Mr. Justice Rajesh Sekhri
Case No.: Bail App No. 69/2024
Advocates for the Petitioners: Mr. Sunil Sethi, Sr. Advocate with Mr. Waheed Choudhary, Advocate
Advocate for the Respondent: Mr. Suneel Malhotra, GA
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