Amrish Khajuria vs Ut Of Jammu And Kashmir
2022 Latest Caselaw 229 j&K

                                                                     Sr. No.1&4

        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU
                                  CrlM No. 83/2022 in
                                  Crl A(D) No. 6/2021 &
                                  CrlM No. 149/2022 in
                                  CrlA (D) No. 9/2020

                                                 Reserved on 17.02.2022.
                                                 Pronounced on 21.02.2022.

Amrish Khajuria                                                  ..... appellant (s)
Ashok Kumar

                                Through :- Mr. K.S.Johal Sr. Advocate with
                                           Mr. Karman Singh Johal Advocate
                                           Mr. Sunil Sethi Sr. Advocate with
                                           Mr. Vaibhav Gupta Advocate.

                          V/s

UT of Jammu and Kashmir                                         .....Respondent(s)

                                Through :- Mr. Amit Gupta AAG.

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
       HON'BLE MR. JUSTICE MOHAN LAL, JUDGE


                                    ORDER

1 By the medium of these two applications, one filed by convict

Amrish Khajuria (appellant in Crl A(D) No. 6/2021 and the other filed by

Ashok Kumar (appellant in Crl A (D) No. 9/2020, the applicants are seeking

their enlargement on bail pending disposal of their respective appeals. The bail

is sought by the applicants primarily on the ground that the principal accused in

the case has already been granted bail by the Hon'ble Supreme Court and,

therefore, there is no reason or justification to treat the applicants herein, who

were convicted along with the principal accused, differently.

2 The respondent has opposed both the bail applications on the

ground that the applicants have been convicted for commission of heinous

offences punishable, inter alia, under Section 302 RPC and have been

sentenced to undergo life imprisonment and fine.

3 Mr. Amit Gupta, AAG appearing for the respondent, however,

does not dispute that the co-accused, namely Vishal Sharma, who was

convicted along with the applicants herein has been enlarged on bail by the

Supreme Court. He also could not point out any distinguishable feature in the

case of the present applicants.

4 Heard learned counsel for the parties and perused the material on

record.

5 It is seen that the vide judgment dated 07.07.2020 passed by the 1st

Additional Sessions Judge, Jammu ["trial Court"], the applicants were

convicted for commission of offences punishable under Sections 302/341 RPC

and 3 /4 Arms Act and Section 302/341 RPC respectively and the co-accused

of the applicants, namely Vishal Sharma was also convicted for commission of

offences punishable under Sections 302/34/341 RPC and 30 Arms Act .

6 The trial Court vide its order dated 09.07.2020 convicted all the

three accused i.e the applicants herein and Vishal Sharma for commission of

aforesaid offences and sentenced Vishal Sharma to life imprisonment and fine

of Rs.10,000/- for commission of offence punishable under Section 302 RPC,

simple imprisonment of one month and fine of Rs.500/- for offence under

Section 341 RPC and simple imprisonment of six months and fine of Rs.2000/-

for offence punishable under Section 30 Arms Act. The applicant Amrish

Khajuria was similarly sentenced to life imprisonment and fine of Rs.10,000/-

for offence punishable under Section 302 RPC, simple imprisonment of one

month and fine of Rs.500/- for offence under Section 341 RPC and simple

imprisonment of two years and fine of Rs.2000/- for offence punishable under

Section 4/25 Arms Act. The applicant Ashok Kumar was also sentenced to life

imprisonment and fine of Rs.10000/- for offence under Section 302 RPC and

simple imprisonment of one month and fine of Rs.500 for offence under

Section 341 RPC them to undergo life imprisonment and fine.

7 The judgment of conviction and order of sentence are subject

matter of challenge in three different appeals which are pending adjudication in

this Court.

8 As is further seen from the record, all the three convicts including

the applicants herein filed three different applications for suspension of

sentence and grant of bail pending disposal of their respective appeals which

applications were dismissed by the Division Bench of this Court vide order

dated 02.06.2021. Feeling aggrieved and dissatisfied by the rejection of bail,

one of the convict, namely Vishal Sharma approached the Supreme Court by

way of a Special Leave Petition i.e SLP(Crl) No. 5911/2021. The Supreme

Court having regard to the facts and circumstances of the case and taking note

of the fact that the convict Vishal Sharma had already undergone 14 years of

incarceration and that his appeal filed before the High Court was not likely to

be heard at an early date, granted bail to him. For facility of reference, the

order of the Hon'ble Supreme Court passed in the case of Vishal Sharma is

reproduced hereunder:

"Having heard learned counsel for the parties and considering the facts and circumstances of this case, especially the fact that the petitioner has already undergone nearly 14 years of incarceration and his appeal filed before the High Court is not likely to be heard at an early date, we deem it appropriate to grant bail to the petitioner.

Accordingly, we allow the prayer for bail and direct that the petitioner be enlarged on bail on such terms and conditions as may be imposed by the trial Court.

9 From the reading of order passed by the Hon'ble Supreme Court

granting bail to the convict Vishal Sharma, we see no reason or justification to

deny similar treatment to the applicants herein. Aforesaid Vishal Sharma, who

has been granted bail by the Hon'ble Supreme Court, was also one of the

accused along with the applicants herein, who were ultimately convicted by the

trial Court. Like Vishal Sharma, the applicants herein are also incarceration for

more than 14 years and their appeals are also not likely to be heard at an early

date. If that be position, we are left with no option, but to accord similar

treatment to the applicants herein, for, we do not see nor the learned AAG

could point out any distinguishable feature in their case.

10. We find that the applicants are also similarly situated with Vishal

Sharma and their role in the commission of crime ascribed to them is not, in

any way, less than the role allegedly played by Vishal Sharma in the

commission of crime. As a matter of fact, the shots with which the deceased

died were fired by Vishal Sharma. Be that as it may, without going into the

merits of the case and on the analogy of the order of the Supreme Court passed

in the case of Vishal Sharma on 18.01.2022 (supra), we are inclined to accept

the bail plea of the applicants and direct their release on bail on the following

terms and conditions:

(i). They shall submit personal bonds in the amount of Rs.1.00 lac before the Registrar Judicial of this Court and two sureties of the like amount before the Superintendent of the concerned Jail;

(ii) They shall attend their appeals on regular basis as and when same are listed in the Court;

(iii) they shall not leave the UT of Jammu and Kashmir without prior permission of this Court;

(iv) They shall not indulge in the commission of any offence while being on bail.

Applications are disposed of accordingly.

                    (MOHAN LAL)                          (SANJEEV KUMAR)
                        JUDGE                                 JUDGE
Jammu
21 .02.2022
Sanjeev



                    Whether order is speaking:Yes

                    Whether order is reportable:Yes/No