Mohd. Ashraf And Anr vs Ut Of J&K
2022 Latest Caselaw 110 j&K

       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT JAMMU
                                           Bail App No. 415 of 2021

Mohd. Ashraf and anr.                           .....Appellant(s)/Petitioner(s)
                     Through: Mr. P. N. Raina, Sr. Advocate with
                              Ms. Deeksha Handoo, Adv.
                Vs

UT of J&K                                                 ..... Respondent(s)

                     Through: Mr. Suneel Malhotra, GA

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

                                  ORDER

08.02.2022

1. The instant application for grant of bail has been moved by the

petitioners whereby they have sought bail in a case arising out of FIR No.03

of 2021 for offences under Section 306 of IPC registered with Police Station,

Warwan, Kishtwar.

2. The facts leading to registration of the aforesaid FIR are that on

23.07.2021, the Police received an information that one lady, namely, Zahoora

Begum, the wife of petitioner Mohd. Ashraf has jumped into river Chenab and

her dead body has been recovered from the banks of the said river. The police

started inquest proceedings under Section 174 Cr.P.C and seized the dead

body of the deceased. The statements of the witnesses who were acquainted

with the circumstances of the case were recorded under Section 175 Cr.P.C.

3. It was found that the deceased was married to petitioner Mohd. Ashraf

about 17/18 years back and out of this wedlock, three children were born. It

was also found that after some time of their marriage, the petitioner Mohd.

Ashraf, his brother Fayaz Ahmad and his sisters Shariefa Begum, Saira

Begum and Rafiqa Begum used to taunt the deceased and inflict mental

torture and cruelty upon her. They would even compel the deceased to go

without food. It was also found that petitioner Mohd. Ashraf, who is a police

official, usually remains out of his house in connection with his duty and

whenever he would come to his home, his brother, petitioner Fayaz Ahmed

would instigate him against the deceased. Thus, it was found that the

deceased, after being fed up of the acts of cruelty inflicted upon her by the

accused, decided to end her life by committing suicide and consequently, she

jumped into river Chenab.

4. Based on the above circumstances that were unraveled during the

inquest proceedings, the police registered the aforesaid FIR and started

investigation of the case. The statements of witnesses under Sections 161 and

164 of Cr.P.C. were recorded during the investigation, whereafter it was found

that offence under Section 306 of IPC is established not only against the

petitioners, but also against their three sisters named hereinbefore.

Accordingly the charge sheet was laid before the trial court.The charge for

offence under Section 366 IPC stands framed by the trial court against all the

five accused persons.

5. It appears that the petitioners as well as the co-accused had approached

the learned trial court for grant of bail, but the application to the extent of

petitioners has been dismissed vide order dated 22.09.2021 passed by the

learned Sessions Judge, Kishtwar whereas the application of three female

accused has been allowed.

6. In the instant application, it is contended by the petitioners that the

allegations made in the impugned FIR and the charge sheet filed against them

are absolutely baseless and devoid of any substance. It is further contended

that the petitioners are innocent persons and bail cannot be denied to them as a

measure of punishment. It has also been contended that the learned trial court

has, while dismissing the bail application of the petitioners, fallen into grave

error inasmuch as it has adopted a reasoning which amounts to violation of

normal rule of bail not jail. Lastly, it has been contended by the petitioners

that they are ready to abide by all the conditions that may be imposed upon

them in case bail is granted to them.

7. The application has been resisted by the respondents. It is contended by

the respondents that the allegations made against the petitioners in the FIR

and the charge-sheet are very serious in nature as they have committed a

heinous offence which is punishable with imprisonment for a term which may

extent to ten years and fine. According to the respondents, there is sufficient

material on record to disclose direct complicity of the petitioners in the

alleged crime. It is also contended that the bail application has been rightly

rejected by the trial court and that there is reasonable apprehension that the

petitioners will try to tamper with the prosecution evidence.

8. I have heard learned counsel for the parties and perused the material

placed on record including the copy of the charge sheet as well as the order

passed by the trial court on the bail application of the petitioners.

9. 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 Section

437 (1) and Section 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.

10. The Supreme Court in the case of "Mahipal vs. Rajesh Kumar and another,

reported in (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. 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."

11. From the aforesaid discussion of law on the subject, it is clear that

while nature of offence and severity of punishment is an important

consideration for considering the bail plea of an accused, a prima facie view

of involvement of the accused in the alleged crime is a factor which is also

required to be considered. On this aspect of the case, learned counsel

appearing for the petitioners has taken me to through the contents of the

chargesheet and the statements of the witnesses recorded during the

investigation of the case. Learned counsel has argued that the marriage

between the deceased and petitioner Mohd. Ashraf was solemnized about

17/18 years back and the couple had three children. It is contended in such a

scenario, in the absence of any specific instances of cruelty, it is highly unsafe

to conclude that the deceased, was forced or instigated by the petitioners to

commit suicide. Learned counsel has contended that the allegations made

against the petitioners in the chargesheet and the statements of the witnesses

recorded under Sections 161 and 164 of Cr.P.C. during the investigation of the

case, are vague and omnibus in nature. He has submitted that there are no

specific details about the alleged acts of the cruelty in the chargesheet and the

statements of witnesses nor there are any details, as regards, any incident of

torture which is proximate to the timing of death of the deceased. On these

grounds, it is urged that the offence under Section 306 of IPC is not made out

against the petitioners.

12. In the above context, the learned counsel has placed reliance upon the

judgment of the Supreme Court in the case of UDE Singh and ors. vs. State

of Haryana, 2019 (17) Supreme Court Cases 301" and referred to observation

made in paragraph 16 of the judgment, which reads as under:

16. In cases of alleged abetment of suicide, there must be a proof of direct or indirect act/s of incitement to the commission of suicide. It could hardly be disputed that the question of cause of a suicide, particularly in the context of an offence of abetment of suicide, remains a vexed one,

involving multifaceted and complex attributes of human behaviour and responses/reactions. In the case of accusation for abetment of suicide, the Court would be looking for cogent and convincing proof of the act/s of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the accused which compels the person to commit suicide; and such an offending action ought to be proximate to the time of occurrence. Whether a person has abetted in the commission of suicide by another or not, could only be gathered from the facts and circumstances of each case.

13. Based on afore-quoted principles laid down by the Supreme Court, the

learned senior counsel has contended that in the instant case, there is no direct

or indirect proof of acts of incitement to the commission of suicide and none

of the actions of the petitioners is proximate to the time of the occurrence.

Although, it would be premature for this Court to deeply analyze the material

collected by the investigating agency in support its charge against the

petitioners, yet for the limited purpose of deciding this application, it is

necessary to take this material into consideration to test the merits of

submissions made by learned counsel for the petitioners.

14. The fact that the marriage between the deceased and the petitioner

Mohd. Ashraf lasted 17/18 years and out of this wedlock three children were

born, is a circumstance which does support the contention of the learned

counsel for the petitioners because it is not a case where death of the wife has

taken place within seven years of her marriage so as to attract presumption

under Section 113A of the Evidence Act. There appears to be prima facie

merit in the submission of learned senior counsel appearing for the petitioners

that there are no specific details as regards the acts of cruelty and torture

alleged to have been inflicted upon the deceased by the petitioners. Besides

this, the contention of the petitioners that there is no mention of any of the acts

or omissions of the petitioners having any proximity to the date of the

occurrence, appears to be prima facie well founded.

15. Learned trial Court, while declining to grant bail to the petitioners, has

not taken into consideration above aspect of the matter and has simply

declined to grant bail to the petitioners on the ground that charges in the case

are yet to be framed. A bail application has to be decided on the touchstone of

the principles evolved by judicial precedents and not on the basis of

considerations which are alien to the subject. Whether the charges have been

framed or not, is not a relevant consideration for deciding a bail

application.Merely because the stage of framing of charges has not reached,

does not mean that an accused should be denied concession of bail, even if he

is otherwise entitled to it. Thus, the reasoning adopted by the learned trial

court for declining the concession of bail to the petitioners, cannot be

countenanced in law.

16. So far as power to grant bail to a person facing trial is concerned, the

same is discretionary in nature. The object of the bail is to secure the

appearance of the accused person at the trial. Its object is neither punitive nor

preventive. The imprisonment of an accused before conviction amounts to

inflicting punishment without trial and the same is antithesis to the due

process of law which is intrinsic to our criminal jurisprudence. The

seriousness of the charge is no doubt one of the relevant considerations while

considering a bail application, but other factors should also be taken into

account so as to balance the valuable right of liberty of an individual and the

interest of the society in general.

17. The Supreme Court has, in a recent judgement in the case of "Arnab

Manoranjan Goswamaiv. Vs. State of Maharastra and ors. (2021) 2

Supreme Court Cases 427", while reiterating that basic rule of our criminal

justice system is bail not jail, emphasized that the High Courts and the courts

in the District judiciary of India must enforce this principle in practice.

Paragraph 70 of the judgment is relevant to the context and the same is

reproduced as under:

"70. More than four decades ago, in a celebrated judgment in State of Rajasthan, Jaipur v. Balchand, Krishna Iyer, J. pithily reminded us that the basic rule of our criminal justice system is "bail, not jail". The High Courts and Courts in the district judiciary of India must enforce this principle in practice, and not forego that duty, leaving this Court to intervene at all times. We must in particular also emphasize the role of the district judiciary, which provides the first point of interface to the citizen. Our district judiciary is wrongly referred to as the "subordinate judiciary". It may be subordinate in hierarchy but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to render justice to them. High Courts get burdened when courts of first instance decline to grant anticipatory bail or bail in deserving cases. This continues in the Supreme Court as well, when High Courts do not grant bail or anticipatory bail in cases falling within the parameters of the law. The consequence for those who suffer incarceration are serious. Common citizens without the

means or resources to move the High Courts or this Court languish as undertrials. Courts must be alive to the situation as it prevails on the ground - in the jails and police stations where human dignity has no protector. As judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice system„s primordial interest in preserving the presumption of innocence finds its most eloquent expression. The remedy of bail is the "solemn expression of the humaneness of the justice system". Tasked as we are with the primary responsibility of preserving the liberty of all citizens, we cannot countenance an approach that has the consequence of applying this basic rule in an inverted form. We have given expression to our anguish in a case where a citizen has approached this court. We have done so in order to reiterate principles which must govern countless other faces whose voices should not go unheard."

18. From the afore-quoted observation of the Supreme Court, it is clear that

before declining the concession of bail to an accused, the seriousness of its

consequences on the accused have to be borne in mind by the Court. In the

instant case, the learned trial court, while declining the concession of bail to

the petitioners, has observed these principles in breach.

19. Apart from the above, the petitioners have been in custody since August

11, 2021 and the investigation of the case is complete. The charge-sheet has

already been filed before the learned trial court and the co-accused have been

enlarged on bail. Denying the petitioners the concession of bail, in these

circumstances, would amount to inflicting punishment upon them without trial

and the same may prejudice their right to prepare defence against the charge

that has been led against them. Further there is nothing on record to even

remotely suggest that in case the petitioners are granted bail, they would be

fleeing or thwarting the court of justice.

20. For the forgoing reasons, the bail application is allowed and the

petitioners are admitted to bail subject to the following conditions:

a. that they shall furnish personal bond in amount of Rs.50,000/-

with one surety of like amount to the satisfaction of the learned trial court;

b. that they shall appear before the trial court on each date of hearing c. that they shall not leave the territorial limits of Union Territory of J&K without prior permission of the learned trial court. d. that they shall not tamper with the prosecution evidence.

21. The observations made in this order shall not be taken as an expression

of opinion on merits of the case. The same have been made for the limited

purpose of deciding this application. The petition stands disposed of.

22. A copy of this order be provided to learned counsel for the petitioners

and another copy be sent to the learned trial Court.

                 .                                          (Sanjay Dhar)
                                                                Judge
Jammu
08.02.2022
Paramjeet


                                   Whether the order is speaking:               Yes
                                   Whether the order is reportable:             Yes