Jammu & Kashmir High Court - Srinagar Bench
Union Territory Through Police ... vs Tawheed Bashir Rather & Ors on 28 July, 2022
S. No. 10
Regular Causelist
IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CrlM No. 35/2022
In CrlA (D) No. 01/2022
Union Territory through Police Station Charisharief. ...Appellant(s)
Through: Ms Asifa Padroo, AAG
Vs.
Tawheed Bashir Rather & Ors ...Respondent(s)
Through: Mr Abu Adil Pandith, Advocate
CORAM: HON'BLE MR. JUSTICE ALI MOHAMMAD MAGREY, JUDGE
HON'BLE MR. JUSTICE M.A. CHOWDHARY, JUDGE
ORDER
28.07.2022
CrlM No. 35/2022
This is an application seeking condonation of delay
occasioned in filing of appeal against the impugned
Judgment/order dated 29.09.2021.
The application for the reasons stated therein, is allowed and
the delay of 76 days in filing the appeal is condoned.
CrlM No. 35/2022 is disposed of.
CrlA (D) No. 01/2022
1. Appellant-UT of J & K, after obtaining sanction to file, vide
Government Order No. 5657-LD (ACQ) of 2021 dated
06.12.2021, has preferred instant appeal in terms of Section 21 of
NIA Act against the order dated 29.09.2021, (hereinafter called
impugned order for short) passed by the Court of learned Special
Judge and (designated under NIA Act) Srinagar, whereby the
accused-respondents No. 1 & 2 had been admitted to bail in a
case titled State of J & K versus Umar Farooq Mir & Ors arising
out of FIR No. 06/2018 registered at Police Station Char Sharief
for the commission of offences punishable under Sections 16/18
UA P Act, 302/392/120-B RPC and 7/27 Arms Act.
CrlM No. 35/2022
2. Aggrieved of the order impugned, the same has been
challenged on the following grounds:
i. That the Trial Court has not appreciated the fact that
there was sufficient evidence connecting the accused
with the commission of the offence as they were alleged
to have voluntarily harboured the terrorists which is
punishable under chapter IV of ULA (P) Act.
ii. That the incriminating material in the case diary
explicitly establishes case against accused persons and
their prima facie involvement with the commission of the
alleged offences."
iii. That the Trial Court did not appreciate the prima facie
involvement of the accused in the commission of
offences and enlarged them on bail on superfluous
grounds which are not patently connected with the case.
iv. Section 43 (D) of UA (P) Act imposes express bar on
granting of bail to the accused persons when there are
reasonable grounds to believe that the accusations against
such persons are prima facie true, however, the trial
Court despite express bar and cogent evidence against the
accused-respondents has passed the impugned order
without appreciating incriminating material against them.
v. That the trial Court was to satisfy itself that whether
prima facie accusations are true and by no stretch of
imagination the Court have to elucidate upon the whole
evidence collected for the formation of opinion at the
stage of consideration of bail was limited.
vi. That the offences committed by the accused-respondents
carry punishment for life and in the larger interests of the
Society, State and the National interests the accused-
respondents should have been behind bars and not
admitted to bail.
vii. That the trial Court has not taken into consideration the
magnitude of allegations against the accused persons and
the punishment assigned for the commission of offences
CrlM No. 35/2022
of which they were charged, as such, the impugned order
deserves to be set aside.
viii. It was finally prayed that the impugned order be set aside
and the accused be committed to custody.
3. Heard perused and considered.
4. Learned AAG appearing for the Appellant has vehemently
argued that the accused in a case involving the commission
of offences punishable under Unlawful Activities Prevention
Act are not entitled to bail during investigation or trial, as
there is an express bar under section 43 (D) of the Act to
grant the bail and the Court is supposed to not release the
accused persons on bail when they are accused of
commission of offences punishable under chapters IV & VI
of the Act.
5. It was further argued that when the Court is of the opinion
that there are reasonable grounds for believing that the
accusations against such accused are prima facie true, since
the trial Court had charge sheeted the accused after its
satisfaction of the commission of offences under the
unlawful Activities Prevention Act, and, therefore, till the
accused are cleared of the charge on conclusion of trial, the
accused are not entitled to be admitted to bail. It was further
argued that the trial Court has committed grave illegality by
enlarging the accused-respondents on bail during the trial of
the case and urged that the impugned order be set aside and
the respondents no. 1 & 2 be directed to be taken into
custody to face further trial in the case.
6. Learned counsel for the accused-respondents no. 1 & 2 ex
adverso, argued that the trial Court has passed the impugned
order granting bail in favour of the accused-respondents on
the basis that the prosecution has failed to prove the case
against them as no incriminating evidence could be brought
on record by the prosecution during trial before the Court
below.
CrlM No. 35/2022
7. He has further argued that the accused-respondents had made
out a case for grant of bail in view of the evidence led by the
prosecution as prosecution had failed to place on record any
incriminating material against any of the accused-
respondents. It is further argued that the statutory bar under
Section 43 (D) of UAPA in view of the recording of
maximum of the evidence was not attracted in the case and
no fault can be found with the impugned order. He finally
prayed that the impugned order be upheld and the appeal
filed against it be dismissed.
8. The accused-respondents no. 1 & 2 has been facing trial
before the trial Court since the year 2018 for having been
charge sheeted in a case arising out of FIR No. 06/2018
registered at Police Station Chari Sharief for the commission
of offences punishable under Sections 16/18 UAP Act,
302/392/120-B RPC and 7/27 Arms Act. They had been
charge sheeted for the commission of aforementioned
offences vide order dated 27.12.2018. During trial the
prosecution succeeded to examine 19 witnesses, whereas, the
statements of 12 witnesses had been admitted by the accused
persons out of 63 witnesses listed in the calendar of
witnesses.
9. The trial Court has observed in para 11 of its order that all
the witnesses whose statements had been recorded and cited
as witnesses to the occurrence, recovery memos, CCTV
footage, identification of accused, docket and statements
recorded under Section 164-A Cr.PC, have not stated
anything incriminating against the accused-respondents no. 1
& 2 and have not implicated them in the commission of any
offence. It is needless to reiterate the statements of witnesses,
as have been reflected in the impugned order.
10. Contention of the learned AAG appearing for the appellant is
that the statutory bar under Section 43 (D) of ULA P Act is
applicable in the case to deny bail to the accused-respondents
no. 1 & 2 is not tenable, in view of the fact that the case is
CrlM No. 35/2022
not at the stage of investigation, rather almost all the material
witnesses have been examined by the trial Court and the
statements of formal witnesses have also been admitted by
the defence. Therefore, the stage has arisen where the trial
Court was in a position to record its satisfaction with regard
to 'prima facie' truthfulness of the accusation or otherwise
against the accused/respondents no. 1 & 2.
11. On the basis of the evidence recorded, the trial Court had an
occasion to make up its mind with regard to the statutory bar
about the granting of the bail. The trial Court while referring
to the statements of 19 witnesses examined, besides two TIP
witnesses and statements of 12 witnesses recorded under
Section 161 Cr.PC, and admitted by the defence in the case,
has observed that all these witnesses cited to the occurrence,
Seizure memos, Test Identification Parade of the accused
persons have not made any incriminating statement against
the accused-respondents no. 1 & 2, rather the statements
taken into consideration in their entirety at their face value,
do not implicate any of the accused-respondents 1 & 2 to
have committed the offences of which they were charged.
12. It has been the consistent view as laid down authoritatively
by the constitutional courts that the detention in custody
pending completion of trial could be a cause of great
hardship. The object of the bail is to secure the presence of
the accused at the trial and its object of bail is neither
punitive nor preventative. Deprivation of liberty is to be
considered as punishment, unless it can be required to ensure
that an accused person will stand his trial when called upon.
It has to be borne in mind that the legal principle is that
punishment begins after conviction, and that every man is
deemed to be innocent until duly tried and found guilty.
However, when the 'necessity' demand that some un-
convicted persons should be held in custody pending trial to
secure their attendance at the trial, but in such cases,
necessity is the operative test.
CrlM No. 35/2022
13. In view of the fact that almost all the material witnesses have
been examined and the other witnesses who are yet to be
examined including I/O, whose examination would not
improve the case and no impact shall be caused to the trial of
the accused-respondents no. 1 & 2. The trial Court has
rightly decided the bail application after consideration of the
evidence recorded during trial and has reached to its logical
satisfaction to believe the accusation against the accused-
respondents no. 1 & 2 cannot be stated to be true, as such,
they were found entitled to be admitted to bail.
14. As a sequel to the aforesaid discussion, we are of the
considered opinion tha the trial Court has passed the
impugned order legally and no interference by this Court is
required in the same. The impugned order is, thus, upheld,
and the appeal as a result is dismissed.
15. A copy of this order shall be certified to the Trial Court for
information.
(M.A. CHOWDHARY) (ALI MOHAMMAD MAGREY)
JUDGE JUDGE
SRINAGAR
28.07.2022
Hilal Ahmad
CrlM No. 35/2022
