Jammu & Kashmir High Court - Srinagar Bench
Ghulam Hyder Mir vs Union Territory Of J&K & Ors on 12 October, 2021
S. No. 3
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Bail Appl. No. 83/2021
Ghulam Hyder Mir
...Petitioner(s)
Through: Mr. Gulzar Ahmad Bhat, Adv.
V/s
Union Territory of J&K & Ors.
...Respondent(s)
Through: Mr. B.A.Dar, Sr.AAG.
Coram:HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
1. Bail in anticipation is being sought by the petitioner herein in FIR
No. 04/2015 registered with the P/S Crime Branch Kashmir.
2. According to the prosecution case an FIR No. 04/2015 owe its
origin from a communication no. SVC/K-31/2007 dated
14.08.2014 addressed by the State Vigilance Commission, Srinagar
to the Inspector General of Police Crime Headquarters, Srinagar
along-with a copy of judgment dated 29.05.2014, requiring the
Crime Branch to register the case in the matter after finding that
the public functionaries who were the custodians of the record
attested the mutations in respect of the land which had been
acquired already by the Government, and that the said officials of
the Revenue department failed to maintain the record and to update
the same from time to time, thereby failed to discharge their
official functions and fraudulently with ulterior motives attested
fresh mutations in respect of the land in question.
3. It is the further case of the prosecution that during the course of
investigation relevant record came to be seized and the statements
recorded inasmuch as the expert opinion viz-a-viz hand writings
was obtained linking the petitioner with the commission of
offence.
4. The accused persons during the course of investigation were found
to have knowingly and dishonestly in league with each other and
made wrong entries in respect of the land in question while
attesting the mutations under Section 4 & 8 of the Agrarian
Reforms Act.
5. Investigation is stated to be at the final stage and the questionnaire
is also stated to have been served upon the petitioner herein who
instead of responding the same is stated to have instituted the
instant application for grant of bail in anticipation of arrest.
6. The petitioner per-contra has contended in the application that he
was serving as Patwari in the Revenue department and retired on
superannuation in the year 1990. It is being stated that the
respondent-Crime Branch has registered FIR in question in respect
of entries/mutations having been attested before more than 60
years. It is being further stated that the petitioner is of the age of 92
years and that he has not committed any offence or crime and have
been unnecessarily involved in the FIR in question and subjected
to investigation thereon.
7. Heard learned counsel for the parties and perused the record.
8. Indisputedly the FIR in question has been registered by the
respondents pursuant to the order passed by the State Vigilance
Commission dated 29.05.2014 in respect of the land having been
previously acquired by the Government.
9. Perusal of the record tends to show that in the compliant before the
State Vigilance Commission, the present petitioner was not a party
respondent(accused). The record further tends to show that the
petitioner retired from service on his superannuation on 31.10.1990
and that the present age of the petitioner is more than 90 years.
Perusal of the record further tends to show that the respondents
have completed the investigation, while seizing all the relevant
records and documents besides collecting the evidence thereof.
10.Before adverting to the application in hand, it would be appropriate
to refer to the settled position of law as evolved by a long line of
decisions of the Apex Court on the subject relating to the grant of
bail, which provides that there is no straightjacket formula or
settled rules for the use of discretion but at the time of deciding the
question of "Bail or Jail" in non-bailable offences, court has to
utilize its judicial discretion not only as per the settled precedents.
Reference in this regard is made to the Apex Court judgment
passed in case titled as "Data Ram Singh Vs. State of Uttar
Pradesh & Ors" reported in 2018(3) SCC page 22, wherein at
Paras 1,2, 4 and 5 following is noticed:-
1. "A fundamental postulate of criminal jurisprudence
is the presumption of innocence, meaning thereby
that a person is believed to be innocent until found
guilty. However, there are instances in our criminal
law where a reverse onus has been placed on an
accused with regard to some specific offences but
that is another matter and does not detract from the
fundamental postulate in respect of other offences.
Yet another important facet of our criminal
jurisprudence is that the grant of bail is the general
rule and putting a person in jail or in a prison or in
a correction home (whichever expression one may
wish to use) is an exception. Unfortunately, some of
these basic principles appear to have been lost sight
of with the result that more and more persons are
being incarcerated and for longer periods. This does
not do any good to our criminal jurisprudence or to
our society.
2. There is no doubt that the grant or denial of bail is
entirely the discretion of the judge considering a case
but even so, the exercise of judicial discretion has
been circumscribed by a large number of decisions
rendered by this Court and by every High Court in
the country. Yet, occasionally there is a necessity to
introspect whether denying bail to an accused person
is the right thing to do on the facts and in the
circumstances of a case.
3. To put it shortly, a humane attitude is required to
be adopted by a judge, while dealing with an application
for remanding a suspect or an accused person to police
custody or judicial custody. There are several reasons
for this including maintaining the dignity of an accused
person, howsoever poor that person might be, the
requirements of Article 21 of the Constitution and the
fact that there is enormous overcrowding in prisons,
leading to social and other problems as noticed by this
Court in In Re-Inhuman Conditions in 1382 Prisons.
4. The historical background of the provision for bail
has been elaborately and lucidly explained in a recent
decision delivered in NikeshTarachand Shah v. Union of
India going back to the days of the Magna Carta. In that
decision, reference was made to Gurbaksh Singh Sibbia
v. State of Punjab in which it is observed that it was held
way back in Nagendra Nath Chakravati, in that bail is
not to be withheld as a punishment. Reference was also
made to Emperor v. Hutchinson wherein it was observed
that grant of bail is the rule and refusal is the exception.
The provision for bail is therefore age-old and the
liberal interpretation to the provision for bail is almost a
century old, going back to colonial days."
11.The object of bail is to seek attendance and appearance of the
accused at the trial by a reasonable amount of bail. Thus, having
regard to the aforesaid facts and circumstances coupled with the
legal position and preposition laid down by the Apex Court in the
judgment supra, petitioner/applicant is held entitled to grant of
bail, in that the respondents claim to have completed the
investigation.
12.Having regard to what has been observed, analyzed and considered
herein above, the application is allowed and the
petitioner/applicant is granted bail in anticipation of his arrest
subject to the following conditions:-
i) Furnishing of personal bond to the tune of Rs.50,000/-
with two sureties each of the like amount to the
satisfaction of the Investigating agency.
ii) To surrender and deposit the Passport, if any, with the
non-applicants within seven days from the date of
passing of this order.
iii) Not to leave the territorial jurisdiction of this Court
without the permission.
iv) Not to influence directly or indirectly the prosecution
witnesses or tamper with the prosecution evidence by any
manner mode or method.
v) To associate with the investigation of the case as and
when asked by the Investigating Officer.
13.Disposed of.
(JAVED IQBAL WANI)
JUDGE
Srinagar
12.10.2021
MUZAMIL QADIR
2021.10.16Muzammil.
11:32 Q
I attest to the accuracy and
integrity of this document
