Din Mohd Age 29 Years vs Union Territory Of Jammu & Kashmir ...
2022 Latest Caselaw 741 j&K

                                                              Sr. No. 266



       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT JAMMU
                                                 Bail App No. 110/2022
                                                 CrlM No. 410/2022
                                                 Reserved on    : 25.04.2022
                                                 Pronounced on : 09-05-2022

  1. Din Mohd age 29 years S/O Ahmed Din R/O Ranmatha Tehsil Latti District
     Udhampur;
  2. Sadeeq age 31 years S/O Maaju R/O Takhole Tehsil Kathua at present village
     Ranmatha Tehsil Latti District Udhampur;
  3. Ashiq Ali age 35 years S/O Mohd Shareef R/O Pamburan Tehsil Marheen
     District Kathua at present village Ranmatha Tehsil Latti District Udhampur.
                                                                     .... Petitioner(s)

                        Through: Mr. Sunil Sethi Sr. Advocate with
                                   Mr. Waheed Choudhary Advocate.
                                          V/s
      1. Union Territory of Jammu & Kashmir through PP Duddu Police Station
         Basant Garh District Udhampur;
      2. Superintendent District Jail Udhampur.....Respondent(s)

Through :- Mr. Sumeet Bhatia GA

AND Bail App No.111/2022 CrlM No. 413/2022 Reserved on : 25.04.2022 Pronounced on : 09-05-2022

Mohd Shareef age 76 years s/o Mohd Yusuf R/O Pambruan Tehsil Marheen District Kathua present address village Ranmatha Tehsil Latti District Udhampur.

.....Petitioner(s) Through: Mr. Sunil Sethi Sr. Advocate with Mr. Waheed Choudhary Advocate.

V/s.

1. Union Territory of Jammu & Kashmir through PP Duddu Police Station Basant Garh District Udhampur;

2. Superintendent District Jail Udhampur. ......Respondent(s) Through: Mr. Sumeet Bhatia GA.

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

ORDE R 09.05.2022

1. By this common order, I would like to dispose of the aforesaid two (2) bail applications bearing Nos. 110/2022 & 111/2022 as both of them arise out of common FIR No. 06/2020 registered with Police Station Basantgarh (District Udhampur) for commission of offences u/ss 306/382/147 IPC. Petitioners/

accused have claimed bails on the grounds, that they are citizens of India and permanent residents of U.T of J&K therefore are entitled to invoke the jurisdiction of this court for protection of his fundamental rights including the right to their liberties and freedom guaranteed to them under the constitution of India, they are law abiding citizens and have not committed any crime but have been wrongly and falsely implicated in the aforesaid FIR for commission of offences u/ss 302/382/323/341&147 of IPC by Police Station Basantgarh, Ld. Trial Court has framed charges against them for commission of offences punishable u/ss 306/382 IPC for abetment of suicide and theft, the allegations against them are that they alongwith some other persons are involved in murderous assault on one Shiv Raj who has not been traced so far or found alive, on completion of investigation charge sheet has been presented in the trial court of Principal Sessions Judge Udhampur wherein after framing of the charges all the independent witnesses including eyewitnesses have been recorded and none of them have depose anything against them for their involvement in the commission of crime as cursory look to the statements of eyewitnesses make it clear that they have not committed any offence, they are facing incarceration for more than 1 year for no fault of theirs, they are only the bread earners of their families, they had filed bail applications before the trial court which were rejected on 11-03-2022 by the trial court without properly appreciating the legal position, the trial in the case is not likely to be concluded in near future as such their bail applications deserve to be considered, grant of bail is a general rule and refusal is exception, they undertake that they will not jump over the bail nor will temper with the prosecution evidence and will remain present before trial court on each and every date of hearing.

2. Respondents have opposed the bails on the grounds, that on 02-06-2020 at about 1600 hours accused persons hatched a conspiracy and with their criminal common intention they stopped the way of complaint Rishi Kumar, started beating him with kicks and fists, uncle of the complainant namely Shiv Raj ran away from the spot due to fear and accused persons armed with sticks/lathies chased the complainant, thereafter, accused persons while beating Shiv Raj forcibly dragged him towards Tawi River with intention to kill him and openly said that Shiv Raj is the eldest among them and they will kill him and after sometime accused came back but Shiv Raj was not with them. It is contended, that a SIT headed by SDPO Ramnagar Dy.SP Gharu Ram was constituted on the directions of DIG Udhampur Reasi Range and during investigation, search

of Shiv Kumar was conducted by divers of SDRF in Tawi River, Dog Squad, Police Party & VDCs, the drowns were also used to retrieve the dead body of deceased Shiv Raj but all in vain, consequently, accused persons was arrested and during enquiry they confessed that Shiv Raj was killed by them and they threw him in Tawi River. It is moreso contended, that during search of dead body of Shiv Raj, blood stained clay, piece of flesh was found underneath the hill, which was seized on spot and sent to FSL for expert opinion, lie detector test of accused was conducted at FSL Jammu and as per the statements of witnesses u/ss 161/164-A Cr.pc and lie detector test of accused persons & FSL report, offences u/ss 302/364/382/341/323/141/201 IPC were prima-facie established against accused persons, whereafter, challan was produced in the court of JMIC Ramnagar which was committed to the court of Pr. Sessions Judge Udhampur. It is further contended, that accused persons cannot be admitted to bail as they are involved in heinous offences and if released on bails, they may temper the prosecution evidence and influence the witnesses.

3. Ld. Counsel have vehemently sought release of petitioners/accused on bail by projecting arguments, that for the last more than 1½ years petitioners/accused are languishing in detention in District Jail Udhampur, "bail is a rule" and "refusal is an exception", personal liberty of petitioners/accused are of paramount importance as they are presumed to be innocent till guilt is proved against them, keeping of petitioners/accused in more detention would amount to inflicting pre-trial punishment which is against the basic principle of criminal jurisprudence, petitioners/accused are a residents of village Ranmatha Tehsil Latti District Udhampur, have deep roots in the society and therefore do not possess golden wings to flee from justice, moreso, petitioners/accused are charged for commission of offences u/ss 306/382 IPC which offences are not punishable with death penalty or imprisonment for life. Prayer has been made for enlargement of petitioners/accused on bail.

4. Ld. GA has vehemently opposed the bail on the grounds, that the charges against petitioners/accused have been framed for commission of offences u/ss 306/382 IPC which are heinous, non-bailable and punishable with maximum imprisonment upto 10 years, there is every likelihood of petitioners/accused fleeing from justice and repeating the offences if enlarged on bail, there is possibility of the accused persons influencing prosecution witnesses and spoiling the case of prosecution, by the criminal acts of accused persons a

precious life has been lost, therefore, accused do not deserve their release on bail. Prayer has been made for rejection of bail applications.

5. Heard Ld. Counsel for the petitioners/accused and Ld. GA for respondents. I have perused the record of the case carefully. The principles which generally govern the grant of bail are relatable to, (i) Seriousness of allegations, severity of punishment, the character of evidence on which the charges is supposed to be sustained, tempering and intimidating of witnesses and chances of running away from the trial, (ii) False implication of the accused, allegations leveled not believable and the wrecking vengeance for political or business reasons. It is also to be noted that at the stage of granting bail, the court can only go into question as to whether a prima-facie case is established against the accused and cannot go into the evidentiary value, creditability and reliability of the witnesses. In light of the principles laid down above, the plea projected by the ld. Counsel for the petitioner/accused in the bail application is required to be examined generally. Petitioners/accused were originally indicted for commission of offences punishable u/ss 302/382/323/341/147 IPC of Police Station Basantgarh and the chargesheet was also presented before the trial court for commission of the said offences. Annexure-I is the order of the trial court of Ld. Pr. Sessions Judge Udhampur dated 11-03-2022 whereby the bail application of petitioners/accused was rejected while interim bail was granted to one of the accused No.5 namely Hasan Din, while para 3 of the said bail order depicts that the dead body of Shiv Raj could not be traced dead or alive from River Tawi. The trial court has framed charges against petitioners/accused for commission of offences u/s 306/382/147 IPC.

In the case law reported in 2010 (3) JKJ 129 (HC) (Jagdish Kumar & Ors Versus State & Ors), Hon‟ble Mr. Justice Sunil Hali (His Lordships the then was Hon‟ble Judge of J&K High Court) while granting bail to the accused charged for commission of offences u/ss 306/498-A RPC, and while discussing the principles of prima-facie case, question of influencing the prosecution witnesses and approach of the court in the matter of bail, in paras 17, 18 & 19 of the judgment held as under:-

"17.While applying the aforementioned principles, it is necessary for the court to examine the nature and gravity of the circumstances under which the offence is committed. Existence of a prima-facie case is essential. If there is no prima-facie case, there is no question of considering other

circumstances. Even where a prima-facie case is established, the approach of the court in the matter of bail, is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tempering with the evidence.

18. The circumstances which have been brought into focus by the respondents as also by the learned sessions Judge, Samba are that the accused persons tried to influence the investigation at the initial stage. The post mortem was got conducted by the Board only through the intervention of the Dy. Commissioner. Nothing has been revealed nor any material has been shown by the prosecution or by the learned Principal Sessions Jude to substantiate this plea. It is mere bald assertion, which cannot be accepted unless there is some material to that extent.

19. Regarding the question of influencing the witnesses, it be seen that material witnesses are parents and brothers of the deceased, which cannot be influenced. Mere allegation that accused persons are influential is not sufficient unless there is some material to that extent.

Ratio of the judgment (Supra) makes the legal position abundantly clear, that even if prima facie case is established against accused, the approach of the court in granting bail should be that the accused should not be detained by way of punishment and regarding influencing of witnesses, the material witnesses cannot be expected to be win over by the accused.

In another case law reported in 2019 Supreme (J&K) 220 (Naresh Singh - appellant Versus State of J&K - Respondents), His Lordships Hon‟ble Mr. Justice Tashi Rabstan while granting bail to the accused for offences u/ss 12 POCSO Act and 342 RPC and while discussing the "principle of personal liberty" enshrined in Article 21 of the Constitution of India vis-à-vis the general rule that "bail is rule" and "jail is an exception", in paragraphs 7,8 &12 of the judgment held as under:-

7. It is a trite law that personal liberty is a very precious fundamental right enshrined in Article 21 of the Constitution of India and deprivation of liberty is a matter of grave concern. It should be curtailed only when it becomes imperative to the peculiar facts and circumstances of the case. When a person is arrested on the allegations of commission of non-bailable offence, two conflicting interests are pitted against each other, that is, liberty of individual involved and interest of

society so as to prevent crime and punish criminal.

It becomes responsibility of the courts to weigh the contrary factors. The object of detaining a person in judicial custody is to direct him to join the investigation, secure his presence at trial, he may not interfere with investigation, intimidate witnesses, tamper with evidence, flee from justice, chances of repeating the offence etc., and if this purpose can be fulfilled by putting certain conditions and securing bail bonds, it would be an ideal blending of two apparently conflicting claims.

8. A fundamental postulate of Criminal Jurisprudence is the presumption of innocence, which means a person is believed to be innocent until found guilty. Another facet of our Criminal Jurisprudence is that grant of bail is the general rule and putting a person in jail is an exception (Bail but not jail). Grant or denial of bail is entirely the discretion of a Judge considering a case, but such discretion should be exercised judiciously and not arbitrarily.

12. In the present case, the fact that out of nine prosecution witnesses, seven material witnesses stands already examined before the court including prosecutrix, so the mere apprehension of the respondent that the applicant- accused if enlarged on bail would temper with the prosecution evidence or possibility of his winning over the prosecution witnesses can be ruled out. It is a settled law that mere apprehension that accused would temper with the prosecution evidence or intimidate the witnesses cannot be a ground to refuse the bail unless the prosecution shows that accused actually tried such tempering/intimidation. My view to release the applicant-accused on bail further gets fortified from the statement of prosecutrix so also from the prosecution story that on 28.10.2018, when she went to School and alighted from the school van, the accused who was already there along with his vehicle forcibly pulled her inside his car and molested and confined her in his car for two hours, and when the parents of the prosecutrix reached near the School, accused on seeing them pushed her outside of his Car and fled away, which prima facie seems false as 28th of October, 2018 falls Sunday, and being Sunday there were no extra classes by the School Authorities to attend the tuition classes and neither any school buses were operated on that day. The apprehension of the respondent that applicant-accused may abscond from justice can be taken care of by imposing certain terms and conditions.

Ratio of judgment (Supra) further makes the legal preposition abundantly clear, that fundamental postulate of criminal jurisprudence is the presumption of innocence lies in favour of accused who is presumed to be innocent till guilt is proved, grant of bail is a general rule and its refusal is an exception, deprivation of personal liberty must be considered as punishment.

6. Principles of law deduced from case laws (Supra) make the legal proposition manifestly clear, that "bail is a rule and refusal is an exception", "accused is presumed to be innocent till his guilt is proved" and the "approach of court in granting bail should be that accused cannot be kept in detention by way of punishment. It is apt to mention here, that charges against accused have been framed by the trial court for commission of offences u/s 306/382/147 IPC. Offences u/s 306/382 IPC are not punishable with death penalty or imprisonment for life, but for maximum imprisonment upto 10 years. Most of the material witnesses have been recorded by the trial court as is observed by the trial court in it‟s bail order dated 11-03-2022. It is apt to mention here, that under trial prisoner‟s right to life does not diminish even a wee bit when in jail as an accused for offences charges against him. The most precious fundamental „right to life‟ unconditionally embraces even an under trial prisoner. Petitioners/accused are residents of Village Ranmatha Tehsil Latti District Udhampur, have deep roots in the society and their presence can be secured by directing them to furnish sufficient sureties. It is trite law that every accused is presumed to be innocent till his guilt is proved. Keeping of petitioners/accused in continuous detention would amount to infringement of their fundamental right of personal life and liberty and infliction of pre-trial punishment. Even if there is a prima-facie case against the petitioners/accused, the approach of the court should be that petitioners/accused should not be detained by way of punishment. In view of the aforesaid discussion, petitioners/accused have carved out a strong case for bails in their favour. Petitioners/accused, therefore, are admitted to bails subject to their furnishing one (1) surety of Rs. one (1) lac each, before Registrar Judicial of this court, with the direction to furnish personal recognizances of the like amounts before Superintendent District Jail Udhampur. However, before parting, the following conditions are imposed upon petitioners/accused:-

(i) that the petitioners/accused shall not influence the prosecution witnesses or intimidate them or dissuade them from deposing before the court;

(ii) that the petitioners/accused shall appear before the trial court on each and every date of hearing till the completion of trial except for special circumstances beyond their control in which case they shall seek exemption from the trial court;

(iii) that in case prosecution collects any material during the period the petitioners/accused on bail have influenced the prosecution witnesses or tried to intimidate them, the prosecution would be well within its right to move an application before this court for cancellation of their bails.

7. Disposed of accordingly.

(MOHAN LAL) JUDGE

Jammu:

09.05.2022 Vijay

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