Muneera Begum And Others vs
2021 Latest Caselaw 463 j&K

                                                                        S. No. 105
               HIGH COURT OF JAMMU AND KASHMIR
                             AT JAMMU



                                                 Bail App No. 16/2021 (O&M)


                                                 Reserved on:         06.04.2021
                                                 Pronounced on:       12.04.2021


     Muneera Begum and others                           ...Applicant/Petitioner(s)


                   Through :- Mr. A. K. Sawhney, Advocate

                  v/s
                    <




't
     UT of J&K and another                                     .....Respondent(s)

                   Through :- Mr. Adarsh Bhagat, GA for R-1
                              Mr. Sunil Sethi, Sr. Advocate with
                              Mr. Lawanya Sharma, Advocate for R-2.


Coram:         HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                                       ORDER

1. The petitioners, through the medium of the instant bail application,

are seeking bail in anticipation of their arrest in case FIR No. 0002/2021 for

offences under Sections 307, 341, 147, 148 & 149 of IPC and 4 & 25 of Arms

Act registered with Police Station, Surankote, District, Poonch.

2. The facts giving rise to the filing of instant bail application are that

the complainant, namely, Mir Mohammad lodged a written report to Police

Station, Surankote to the effect that the petitioners are having a long standing

dispute with the complainant party over a piece of land and that with a criminal

intention to kill the complainant as well as his family members, the petitioners

wrongfully restrained his son, Altaf Hussain on 03.01.2021 at 9:00 a.m, attacked

him with a knife and inflicted serious injuries upon him. It was further alleged

that on hearing hue and cry of the injured person, the other family members of

the complainant rushed to the spot for rescuing the injured, but all the assailants

gave a severe beating to them and it was only with the aid and assistance of some

people who gathered over there that they were saved from the clutches of the

accused. It was further alleged that besides Altaf Hussain, daughter-in-law of

complainant, Rasila Begum and his grandson, Asif Altaf also received injuries

during the occurrence. After registration of the FIR, the Police swung into action

and started investigation of the case. The aforesaid offences are stated to have

been found established against the petitioners.

3. It has been contended by the petitioners that they are innocent and

that they have been falsely implicated in the aforesaid FIR on account of

previous enmity over a property between the petitioners and the complainant

party. It is also stated that the injured, Altaf Hussain, who is an old person, was

advised surgery and that he is likely to be discharged from the Hospital. It is

further averred that the petitioners No. 1 to 3 are women, whereas the petitioner

No. 4 and 5 are senior citizens and as such, they deserve the concession of bail.

The petitioners undertake to abide by the conditions of bail that may be imposed

upon them by this Court and they also undertake to co-operate with the

investigating agency in case they are admitted to bail.

4. Vide order dated 22.01.2021 passed by this Court, the petitioners

were admitted to ad interim anticipatory bail subject to certain conditions and the

said order has been extended from time to time.

5. The bail application has been resisted by the learned counsel for the

respondent-State as well as by respondent No.2, the complainant by filing

response to the same.

6. Respondent-State in its objections has submitted that the petitioners

have committed a heinous crime and that they are not entitled to concession of

bail. It has been further contended that weapon of offence is yet to be recovered

for which custodial interrogation of accused is necessary. It is also averred that

one of the accused is still absconding and that injured, namely, Altaf Hussain has

received serious injuries and he continues to be under treatment at Government

Medical College and Hospital (GMC&H), Jammu. It is further stated that during

the investigation of the case, statements of some of the witnesses under Section

161 Cr.P.C. have been recorded and the statements of certain other witnesses

under section 164 Cr.P.C. have also been recorded. It has been urged in the

objections that after the grant of the interim anticipatory bail in favour of the

petitioners, the inquiry regarding weapon of offence was made from the

petitioner, namely, Mohd Akram, but he has not co-operated. It is further

contended that without the arrest of main accused, namely, Mohd. Akram

recovery of weapon of offence is not possible. Investigation is stated to be in

progress and the statements of some more witnesses are yet to be recorded.

7. Respondent No.2-the injured has also filed his objections to the bail

application. Along with his objections, respondent no. 2 has placed on record

copies of his medical record. Respondent No. 2 has submitted that the incident

which is subject matter of instant bail application is not first of its kind but

previously also on a number of occasions the petitioners have attacked the

complainant party. In this regard, details of previous FIRs have been given in the

reply. Respondent No. 2 has denied that he is an old man and that he had to

undergo any surgery in the Hospital. It has been contended that respondent No. 2

has received serious injuries and he had to remain admitted in Hospital for

several days and that he is still under treatment. On these grounds, it is urged that

the bail application of the petitioners deserves to be dismissed.

8. I have heard the leaned counsel for the parties and perused the

material on record.

9. So far as the principles for grant of bail in anticipation of arrest are

concerned, the same have been laid down by a Constitution Bench of the

Supreme Court in the case of Gurbaksh Singh Sibbia and ors vs. State of

Punjab, (1980) 2 Supreme Court Cases 565. The Court has, while observing

that the question, whether to grant bail or not, depends for its answer upon a

variety of circumstances, the cumulative effect of which must enter into the

judicial verdict, held as under:

"In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted

unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and "the larger interests of the public or the state" are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in The State v. Captain Jagjit Singh, which, though, was a case under the old Section 498 which corresponds to the present Section 439 of the Code. It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail".

10. Relying upon the aforesaid judgment, the Supreme Court in the case

of Siddharam Satlingappa Mhetre vs State Of Maharashtra And Ors, (2011)

1 Supreme Court Cases 694 has, while observing that no inflexible guidelines

or straitjacket formula can be provided for grant or refusal of anticipatory bail,

held that the following factors and parameters can be taken into consideration

while dealing with the anticipatory bail:

"i). The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

ii). The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

iii). The possibility of the applicant to flee from justice;

iv). The possibility of the accused's likelihood to repeat similar or the other offences.

v). Whether the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

vi). Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

vii). The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

viii). While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

ix). The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant ;and

x). Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail".

11. In light of the afore-quoted principles laid down by the Supreme

Court, let me now proceed to analyze the facts of the instant case.

12. So far as the allegations made in the FIR that the petitioners on the

fateful day launched a murderous assault upon the complainant party including

the injured is concerned, the same appears to be based on material on record of

the case diary in the shape of statements of witnesses recorded under Sections

161 and 164 of Cr.P.C. The medical report of the injured placed on record clearly

shows that he has received penetrating injuries on his abdomen and back. So by

no stretch of imagination, it can be stated that case of the prosecution as against

the petitioners is frivolous or false.

13. The fact that the injured, namely, Altaf Hussain has received

penetrating injuries on his abdomen and back, prima facie shows that the offence

under Section 307 of IPC is made out against the assailants. The said offence

itself is very grievous in nature and it carries punishment of imprisonment up to

ten years or with imprisonment for life.

14. Though there is material on record to show that there was long

standing land dispute between the parties, yet having regard to the material

assembled during investigation of the case, it cannot be said that the accusations

which have been made by the complainant against the petitioners is only with an

object of injuring or humiliating the petitioners. The fact that there was previous

enmity between the parties, may have been the motive for the assailants to launch

the attack upon the complainant party.

15. The next question which is required to be determined is as to what

was the exact role of the petitioners in commission of the aforesaid occurrence.

The same is a relevant factor for determining the merits of this bail application as

the petitioners have been implicated in the case with the help of Section 149 of

IPC.

16. If we have a look at the statements of the witnesses recorded during

the investigation of the case, it comes to the fore that it is the petitioner, Mohd.

Akram, who has stabbed the injured on more than one occasion. Thus, it can

safely be stated that the petitioner, Mohd. Akram is the main accused. He is the

person who was carrying the knife in his hand and he is the person who had

launched the murderous attack on injured Altaf Hussain.

17. So far as the role of other petitioners is concerned, as per the

material on record, they caught hold of the injured after he had already been

stabbed by petitioner, Mohd. Akram. Therefore, role of the petitioners No. 1 to 3

and 5 cannot be equated with that of the main accused i.e. petitioner No. 4 whose

role in the alleged crime is pivotal.

18. Further as per the investigating agency, petitioner No.4 is not co-

operating with the investigation of the case, inasmuch as, the weapon of offence

has not been surrendered by him before the investigating agency. It has been

made clear by the respondent No. 1 in its reply that unless main accused Mohd.

Akram is arrested, there is no chance of recovery of weapon of offence. Thus,

custodial interrogation of the petitioner, Mohd. Akram in the instant case is

absolutely necessary for further progression of the investigation. He, therefore,

does not deserve to be enlarged on bail.

19. So far as petitioners No. 1 to 3 and 5 are concerned, as already

noted, their role in the alleged crime is not as serious as that of petitioner No. 4 as

they are not alleged to have participated in the act of actually stabbing the inured.

Apart from this, petitioners No. 1 to 3 happen to be ladies as such, their prayer

for grant of bail has to be considered with some degree of leniency.

20. For the foregoing reasons, the petition is partly allowed and interim

anticipatory bail granted to the petitioners No. 1 to 3 and 5 in terms of order

dated 22.01.2021 is made absolute, whereas interim bail granted to petitioner No.

4, namely, Mohd. Akram shall stand withdrawn. To his extent, the petition stands

dismissed.

(SANJAY DHAR) JUDGE JAMMU 12.04.2021 Paramjeet Whether the order is speaking : Yes/No Whether the order is reportable : Yes/No