Bashir Ahmad Khan & Anr vs Union Territory Of J&K & Anr
2021 Latest Caselaw 1620 j&K/2

 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU

                                                Reserved on: 13.12.2021
                                                Pronounced on:16.12.2021



                          Bail App No.70/2021


BASHIR AHMAD KHAN & ANR.                             ... PETITIONER(S)

                    Through: - Mr. Sajad Ahmad Mir, Advocate.

      Vs.

UNION TERRITORY OF J&K & ANR.                     ...RESPONDENT(S)

                    Through: - Mr. Hakeem Aman Ali, Dy. AG.


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


                                 JUDGMENT

1) The petitioners, who are facing trial relating to charges for

offences under Section 302, 120-B, 34, 343, 468, 471 RPC before the

Court of Principal Sessions Judge, Srinagar, have moved the instant

application for grant of bail.

2) It is contended in the petition that the petitioners are incarcerated

since the year 2016 and the prosecution evidence in the case is yet to be

completed. According to the petitioners, there has been unexplained and

unreasonable delay in completion of the trial of the case, which entitles

them to the grant of bail. It is further averred that the prosecution is

deliberately delaying the recording of statements of prosecution

witnesses.

3) The other ground urged by the petitioners is that they are suffering

from serious ailments and their condition in the jail is worsening with

each passing day. According to the petitioners, they are not being given

proper medical treatment in the jail and, as such, keeping in view their

medical condition, they deserve to be enlarged on bail.

4) The petitioners have also sought bail on merits claiming that,

whatever evidence has been recorded by the prosecution in the case so

far, the same does not even, prima facie, show the involvement of the

petitioner in the alleged crime.

5) I have heard learned counsel for the petitioner and learned Deputy

Advocate General for the respondents.

6) Learned counsel for the petitioners, while making his submissions,

has reiterated the grounds urged by the petitioners in their bail

application and submitted that the petitioners are facing incarceration

without any trial and that they are in jail for last more than five years.

According to learned counsel, the delay in completion of trial is solely

attributable to the prosecution and for this, the petitioners cannot be

made scapegoats. Learned counsel for the petitioners has also referred to

the medical reports of the petitioners and submitted that the medical

condition of the petitioners is deteriorating day by day. In support of his

submissions, learned counsel for the petitioners has relied upon the

following judgments:

1. Nilesh Gangaram Godes v. State of Maharashtra (Criminal Bail Application No.2302 of 2018)

2. Vikaraman & Ors. v. Central Bureau of Investigation (Bail Appln. No.997 of 2019)

3. Prabhakar Tewari v. State of U.P (Criminal Appeal No.153 of 2020)

4. Suketu v. State of Gujarat (R/Criminal Misc.

Application No.29959 of 2017)

7) Per contra, learned Deputy Advocate General has objected to the

grant of bail to the petitioners on the ground that earlier bail application

has been rejected by the trial court on 19.04.2021 and without there being

any change of circumstances, the instant bail application has been filed

by the petitioners. It has been contended that the delay in completion of

prosecution evidence is not attributable to prosecution as the trial of the

case remained stayed for quite some time because a transfer application

was filed before the High Court which was later on allowed and the case

was transferred from Court of learned Principal Sessions Judge,

Bandipora, to the Court of learned Principal Sessions Judge, Srinagar.

On the question of medical condition of the petitioners, it has been

contended that the petitioners are not suffering from such a serious

ailment which cannot be managed by the jail authorities and that the

petitioners are being taken care of by the jail authorities so far as their

medical condition is concerned.

8) Lastly, it has been contended by the learned Dy. AG that this Court

cannot meticulously examine and appreciate the evidence led by the

prosecution at this stage in these proceedings so as to conclude as to

whether the trial against the petitioners would ultimately result in their

conviction or acquittal. It is also contended that most of the material

witnesses of the prosecution are yet to be examined.

9) Before coming to the rival contentions of the parties, let me give

a brief background of the prosecution case.

10) A magisterial enquiry was carried in respect of custodial death of

one Zahoor Ahmad Sofi and on basis of enquiry report, FIR

No.125/2007, out of which present case has arisen, came to be registered

with Police Station, Bandipora. After investigation of the case it was

revealed that death of the deceased Zahoor Ahmad Sofi had occurred in

the custody of SOG Camp Kaloosa Bandipora. It was found that accused

including the petitioners herein with common intention and with the aid

and assistance of each other resorted to manipulation/falsification of

Daily Diary by falsely recording day and date of lifting of the deceased

from his home. Thus, they were found involved in the commission of

offences under Section 302, 343, 468, 471, 201, 34, 109 RPC.

11) It appears that after the challan was committed to the Court of

Principal Sessions Judge, Bandipora, an application came to be filed by

some of the accused before this Court seeking transfer of the challan

from the Court of Principal Sessions Judge, Bandipora, to any other

Court. It also appears that in the said transfer application bearing CRTA

No.22/2017, the proceedings before the trial court were stayed and

ultimately the transfer application was allowed on 19.07.2018.

Consequently, the challan was transferred from the Court of Principal

Sessions Judge, Bandipora, to the Court of Principal Sessions Judge,

Srinagar. The record further reveals that while the case was pending

before the Court of Sessions Judge, Bandipora, the same came to be

adjourned from time to time at the request of the accused and, as such,

the question regarding framing of charge could not be determined for

quite a long time. This has been clearly noted by learned Principal

Sessions Judge, Bandipora, in his order dated 17.05.2017. Even before

learned Sessions Judge, Srinagar, the accused kept on seeking

adjournments for addressing arguments on the question of charge. In his

order dated 03.04.2019, learned Sessions Judge, Srinagar, has noted that

counsel for the accused has been seeking adjournments for addressing

arguments on the question of charge for the last about one year. It was

only on 08.06.2019 that the charges were framed against the accused and

trial of the case commenced.

12) From the aforesaid sequence of events, it is clear that delay in

commencement of trial of the case is solely attributable to the accused

and not to the prosecution. It is true that some delay in completion of

trial has taken place on account of restrictions in physical hearing of

cases due to COVID-19 pandemic but that is an eventuality beyond the

control of everybody. The same cannot be the sole ground for enlarging

an accused on bail, particularly in a heinous offence like murder. The

Supreme Court in Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu

Yadav and another, (2004) 7 SCC 528, has clearly laid down that in a

case where gravity of offence alleged against an accused is severe, the

bail cannot be granted only on the ground of long incarceration.

13) Coming to the ground urged by the petitioners for grant of bail in

their favour on merits, the legal position relating to grant of bail in

heinous offences like murder has been laid down by the Supreme Court

in its catena of judgments, according to which the matters to be

considered in such cases are as under:

1. Whether there is a, prima facie, reasonable ground to believe that the accused had committed the offence;

2. Nature and gravity of the charge;

3. Severity of punishment in the event of conviction;

4. Danger of accused absconding or fleeing, if released on bail;

5. Character, behavior, means, position and standing of the accused;

6. Likelihood of the offence being repeated;

7. Reasonable apprehension of the witnesses being tampered with;

8. Danger of course of justice being thwarted by grant of bail;

14) So far as the instant case is concerned, petitioners are facing the

charge of murder which is punishable with death sentence or

imprisonment for life. The Supreme Court in the case of Kalyan Chandra

Sarkar (supra), while laying down the guidelines for grant or refusal of

bail in serious offences like murder, has observed as under:

"11.The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding

why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are,

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;

(b) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(c) Prima facie satisfaction of the Court in support of the charge; (See Ram Govind Upadhyay Vs. Sudarshan Singh and others and Puran Vs. Rambilas and another.

12. In regard to cases where earlier bail applications have been rejected there is a further onus on the court to consider the subsequent application for grant of bail by noticing the grounds on which earlier bail applications have been rejected and after such consideration if the court is of the opinion that bail has to be granted then the said court will have to give specific reasons why in spite of such earlier rejection the subsequent application for bail should be granted. (See Ram Govind Upadhyay, supra)

15) In the aforesaid judgment, the Supreme Court has also observed

that the conditions laid down in Section 437(1)(i) of Cr. P. C are sine qua

non for granting bail even under Section 439 of the Code, meaning

thereby that in a case where a person is alleged to be involved in an

offence punishable with death sentence or imprisonment for life, he

cannot be released on bail if there appear reasonable grounds for

believing that he has been guilty of such an offence. So, the petitioners

in the instant case, in order to succeed in making out a case for grant of

bail in their favour on merits, have to satisfy this Court that on the basis

of the evidence led by the prosecution and the evidence that is proposed

to be led by the prosecution, there is absence of reasonable grounds for

believing that they have committed the offence.

16) Admittedly, majority of the material prosecution witnesses cited

in the challan are yet to be examined and these witnesses in their

statements recorded under Section 161/164 Cr. P. C have clearly

implicated the petitioners. Therefore, it cannot be stated that there are no

reasonable grounds for presuming that the petitioners are not involved in

the alleged crime. The petitioners, therefore, are not entitled to grant of

bail on merits.

17) Lastly, it has been urged by learned counsel for the petitioners that

the petitioners are suffering from serious ailments and, as such, they

deserve to be enlarged on bail so that they can undergo specialized

treatment. In this regard, Superintendent Central Jail, Srinagar, has filed

a report dated 11.10.2021, to which a certificate with regard to health

status of the petitioner has been annexed by the Medical Officer. In the

status report it has been submitted that petitioner Bashir Ahmad Khan is

being frequently treated in Prisons Hospital, Central Jail, Srinagar and

all baseline investigations are being conducted. It has been further

submitted that the said petitioner has also been referred to Police

Hospital for physician consultation. The report admits that the said

petitioner is suffering from 'Hypertension, breathlessness and cough

with blood tinged sputum'. The report goes on to submit that all the

prescribed medicines and suitable diet and all other facilities as

admissible under rules are being provided to the said petitioner without

any delay. The report further states that the said petitioner is under proper

medical supervision and treatment. So far as petitioner Akhter Hussain

Mir is concerned, he is stated to be suffering from low back ache with

radiculopathy, cervical spondylitis with right renal calculi and Grade 1st

Hydronephrosis. As per medical certificate on record, he has been

advised medication which is being regularly issued to him.

18) Having regard to the nature of ailments which the petitioners are

suffering from and the report of jail authorities, it is clear that the

petitioners are not suffering from any such ailment which cannot be

managed inside the jail. However, if at all petitioners are suffering from

any ailment which cannot be managed in the police hospital, the

respondents can always send the petitioners to other hospitals of the

Union Territory for specialized treatment as and when required.

Therefore, there is no reason for enlarging the petitioners on bail on

medical grounds.

19) There is yet another aspect of this case which is required to be

noticed. Earlier the bail application of the petitioner was dismissed by

learned trial court on 19.04.2021 and only a few months thereafter, the

petitioners rushed to this Court by way of instant application without

there being any change of circumstances. I am conscious of the fact that

the High Court, being a superior and Constitutional Court, has unfettered

powers to entertain an application for grant of bail of an accused whose

bail application has been rejected by an inferior Court but then there has

to be some fresh grounds before the High Court to persuade it to take a

view different from the one taken by the trial court. In the instant case,

learned counsel for the petitioners has not urged any such ground that

would persuade this Court to take a view different from the one taken by

the learned trial court. In fact, the order of trial court is well-reasoned

and lucid and this Court does not find any ground to take a different view.

20) For the forgoing reasons, I do not find any merit in this petition

and the same is, accordingly, dismissed.

(SANJAY DHAR) JUDGE

Srinagar, 16.12.2021 "Bhat Altaf, PS"

                                           Whether the order is speaking:         Yes/No
                                           Whether the order is reportable:       Yes/No




MOHAMMAD ALTAF BHAT
2021.12.17 10:07
I attest to the accuracy and
integrity of this document