Jammu & Kashmir High Court
Sanjay Kumar Alias Bittoo Aged 58 Years vs State Of Jammu And Kashmir on 20 April, 2024
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CrlM No. 395/2023 in
CRA No. 42/2017
Reserved on : 15.04.2024
Pronounced on : 20.04.2024
Sanjay Kumar Alias Bittoo Aged 58 years ....Petitioner(s)/Appellant(s)
Son of Beli Ram,
R/o Ward no. 8 Tehsil Akhnoor,
District Jammu
Through :- Mr. Sunil Sethi, Sr. Advocate with
Mr. Navyug Sethi, Advocate
Vs.
State of Jammu and Kashmir ....Respondent(s)
Through SHO Police Station,
Akhnoor
Through :- Mr. Rohit Mattoo, Spl. PP
Mr. P.N. Raina, Sr. Advocate with
Mr. J.A. Hamal, Advocate
CORAM: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
ORDER
Tashi Rabstan - J
1. By virtue of this order, we intend to dispose of an application,
preferred by the appellant/convict on 13.03.2023, for grant of regular bail
keeping in view his long incarceration in jail for the last more than 16 years.
2. Aggrieved of the impugned judgment of conviction and order of
sentence dated 07.12.2017, the appellant/convict has filed an appeal against the
said judgment bearing Criminal Appeal CRA No. 42/2017 which is pending
disposal before this court.
3. Appellant/convict has claimed his release on bail on the grounds that
this appeal is pending before this Court since 2017 and is not likely to be
considered in near future. It is averred by the petitioner that he is languishing in
jail for last more than 16 years and there is remote possibility of final disposal of
his criminal appeal in near future, which is pending for around five years; that
appeal has been listed before this Court on many occasions, but because of
pendency of large number of appeals, its turn is not coming up and it is likely
that appeal shall take considerable time to be finally considered and decided. It is
further averred that during the period the petitioner was facing incarceration in
jail, his mother Smt. Shanti Devi expired on 22 nd October, 2018 and to perform
various rituals and ceremonies of Adh-Barkhi of his deceased mother he filed an
application for grant of bail being MP No. 3/2018 and this Court vide order
dated 11.05.2018 admitted the appellant to interim bail for four days; that the
petitioner in due deference to the order passed by this Court after attending the
rituals of his deceased mother, duly surrendered himself before the jail
authorities and thus, committed no default or violation of the directions. Further
contended that the appellant, for attending and performing rituals on account of
Choubarsi of his late mother, again approached this Court for grant of bail
through the medium of an application being CrlM No. 1978/2021 and this Court
vide order dated 03.11.2021 issued directions to take the appellant in proper
custody to the place of ceremony. Learned counsel for the applicant has prayed
for grant of bail.
4. Nominal rolls as well as objections to the application seeking grant of
bail have been filed by the respondents.
5. Learned counsel for the appellant/convict has sought release of
appellant on bail by vehemently canvassing arguments, that discretion u/s 389(1)
Cr.PC, 1973 is to be exercised judicially, the appellate court is obliged to
consider whether any cogent grounds have been disclosed giving rise to
substantial doubts about the validity of conviction and whether there is
likelihood of unreasonable delay in disposal of the appeal. It is urged that the
appellant/convict is lying in incarceration for more than 16 years. Learned
counsel for the applicant submits that the Supreme Court of India in (2001) 4
SCC 355 titled "Akhtari Bi v. State of M.P.", has held that prolonged delay in
disposal of the trials and thereafter appeals in criminal cases for no fault of the
accused, confers a right upon him to apply for bail.
6. Learned counsel for the respondent and the complainant have filed
objections to this application, contending therein that the appellant is involved in
heinous offence of committing brutal murder in broad day light and trial court
after full trial has convicted and sentenced him to life imprisonment; that the
applicant/accused had filed an application for interim bail No. 01/2004 and this
Court vide order dated 14.01.2004 granted him interim bail for eight weeks but
the accused absconded and never surrendered; that when the accused did not
appear, the learned trial court proceeded against him under Section 512 Cr.P.C.
vide order dated 01.05.2004; that vide judgment dated 08.07.2010 the trial court
convicted the co-accused Bishan Dass, who filed an appeal against his
conviction which was dismissed and the conviction was upheld. Further
contended that the applicant is an accused in FIR No. 107/2006; after
investigation challan were filed, i.e. File No. 21/Session, File No. 73/Session and
File No. 65/Challan and the learned trial court vide common judgment dated
02.02.2015 convicted accused Nanju and Sangram Singh for offence of murder
and rest of the accused were acquitted except the applicant/appellant herein
because he was absconding and proceeding under Section 512 Cr.P.C. were
initiated against him; against acquitted accused, State filed appeal being CRAA
No. 33/2015 which is still pending before this Court; that during the period the
applicant/accused was absconding, a case was registered against him under
Section 307/34 RPC and 3/25 Arms Act in FIR No. 50/2005, which is still
pending against him. It is contended that the appellant jumped over the bail and
it took 13 years for the law enforcing agencies to make him surrender and face
trial; that after the accused surrendered on 18.04.2017 before the learned trial
court the accused is in jail from last 1 year and 11 months only and he has
already violated the condition of principle of grant of bail by absconding for 13
years and 11 months and during the period committed an heinous offence under
Section 307 RPC and murder; that during the intervening period, when the
appellant was absconding, the trial of the co-accused, namely, Bishan Dass
resulted in his conviction on 28.11.2008 and he was sentenced to undergo life
imprisonment by the trial court and the appeal preferred by him being Cr. Appeal
No. 10/2009 was dismissed by this Court way back on 08.07.2010. Learned
counsel for the respondent and complainant prayed that the bail application may
be rejected.
7. Learned counsel for the complainant and the official respondent have
strenuously opposed the application by vigorously articulating arguments, that if
convict is admitted to bail there is every possibility that he may jump over the
bail and flee from the course of justice as the evidence tendered against him in
the trial court whereby he has been convicted, is cogent, convincing,
corroborative and reliable.
8. We have heard learned counsel for the parties and also gone through
the entire record of the case and scanned the ratio of the judgment relied by
learned counsel for the appellant/convict.
9. Before we advert to the merits of the present case, it shall be apt to
have a look at the Nominal Roll furnished by the concerned Superintendent of
the Jail, which reads as under:-
"Nominal Roll
I, Reyaz Ahmad Dar Superintendent Special Jail (Correctional Home)
Pulwama, certify that:-
a) Details of custody of the case, which is being required by the Hon'ble
Court.
(i) Name of under trial/Accused & father Sanjay Kumar @ Bittu S/o Beli Ram
Name (Age 55 Yrs)
(ii) Address W.No-08, Tehsil Akhnoor, Distt. Jammu
(iii) FIR NO./Date/U/S/PS: FIR NO. 230/1994 U/S 302-RPC of P/S
Akhnoor
(iv) Convicted by the Ld. Court of (with date of Hon'ble Principal & Sessions Judge
judgment & tenure/term of sentence), if Jammu dated 17-12-2017 for life
any Imprisonment & fine of Rs. 50,000/- or
further one year subject to confirmation.
b) Details of Custody period in this case:-
S.no. Particulars Period Year Months Days
1 Custody as under trial 09-12-1994 to 29-11-2003 & 09 07 08
19-04-2017 to 07-12-2017
2 Custody after Conviction 07-12-2017 to 06-05-2023 05 04 29
3 Bail period if any. 29-11-2003 to 25-02-2004 & X 02 26
not surrender back, bail out
after convection
11-05-2018 to 15-05-2018 x x 04
days
Total x 03 x
4 Parole availed (-) x x x x
5 Details of over stay 25-02-2004 to 19-04-2017 13 01 24
absent from parole/ (Bail Jumped)
furlough (-)
6 Actual Custody period x 05 04 25
after conviction [s.no.2-
(4&5)]
7 Actual undergone period x 15 x 03
including custody as
under trial [S.no 1+6]
8 Earned RemissionGR (+) x x x x
9 Total sentence including x 15 x 03
remission {S.no.7+8]
c) Details of other Pending under trial cases (if any):-
(i) FIR NO/Date/U/S/PS 107/2006 P/S Bahufort U/S 302,
120-B-RPC
(ii) Details of trial court Pr. Sessions Judge Jammu
(iii) Whether bail or not Not
(iv) Whether he is in jail in this case Yes
(v) Actual custody in this case as an under trial: 17-07-2019
d) Details of other Pending under trial cases (if any);-
(i) FIR NO/Date/U/S/PS 50/2005 P/S Domana U/S
307/382/34-RPC
(ii) Details of trial court 1st Addl. Sessions Judge Jammu
(iii) Whether bail or not Bail Granted
(iv) Whether he is in jail in this case No
(v) Actual custody in this case as an under trial: x
e) Details of the Conviction in other cases (if any);-
(i) FIR NO/Date/U/S/PS x
(ii) Convicted by the Ld. Court of (with date of x
judgment & tenure/term of sentence), if any
(iii) Details of custody in this case;- x
S.no. Particulars Period Year Months Days
1 Custody as under trial x x x x
2 Custody after Conviction x x x x
3 Bail period if any. x x x x
4 Parole availed (-) x x x x
5 Details of over stay absent x x x x
from parole/furlough (-)
6 Actual Custody period after x x x x
conviction [s.no.2-(4&5)]
7 Actual undergone period x x x x
including custody as under
trial [S.no 1+6]
8 Earned Remission-GR (+) x x x x
9 Total sentence including x x x x
remission {S.no.7+8]
f) Details of acquittal in other case (if any);-
(i) FIR NO/Date/U/S/PS Nil
(ii) Remained confined as under trial (if any)
From .................. to ....................
From .................. to .................... YY.......MM.......DD.......
g) Details of cases pending investigation (if any);- ___________
h) Details of furlough availed by the convict/accused, if any
S.no Particulars Period
1 _____________days _____________ x
2 _____________days _____________ x
3 _____________days _____________ x
i) Details of punishment awarded by jail authority, if any Nil.
j) Conduct in Jail;- Work & conduct in jail as per records maintained
satisfactory."
[Highlighted for emphasis]
10. From a perusal of the aforesaid nominal roll of the applicant, it is evident
that though the work and conduct of the applicant, as per the records maintained
by the jail authorities, remained satisfactory, however, a careful perusal of the
nominal roll would reflect altogether a different picture. It appears that the
applicant/convict was admitted to interim bail by the trial court for a period
w.e.f. 29.11.2003 to 25.02.2004, however, he jumped over bail and remained at
large for a period of over 13 years, i.e., till 19.04.2017. It is pertinent to mention,
that appellant not only abused the concession, but he committed similar offences,
as he was involved in FIR No. 107/2006 of Police Station, Bahu Fort under
Section 302 and 120-B RPC and FIR No. 50/2005 of Police Station, Domana
under Section 307, 382, 34 RPC. Since the applicant/convict, who after having
availed concession of interim bail from the trial court, committed similar nature
of offences, which is an admitted position of fact on the record and learned
senior counsel appearing for the applicant has failed to controvert the same, the
applicant in view of his track record and antecedents, does not qualify to be
admitted to bail pending adjudication of the present appeal.
11. In a recent judgment, Hon'ble Supreme Court of India in "OmPrakash
Sahni vs. Jai Shankar Chaudhary & anr." 2023 Live Law (SC) 389, while
appreciating the provisions of section 389 Cr.PC observed that the sentence can
be suspended only when appellate court without reapreciating the prosecution
evidence at the stage of section 389 Cr.PC, prima-facie, find that convict has fair
chances of acquittal.
12. A similar matter being Criminal Appeal Crl A(D) No. 16/2020 titled "Sat
Paul vs. UT of J&K" has been dealt by this Court, wherein the convict was in
jail for the last more than 12 years and this Court vide order dated 01.08.2023
rejected the application for suspension of sentence and release on bail of the
convict being CrlM No. 796/2023, which was assailed by the appellant before
the Supreme Court by filing SLP(Crl) No. 14621/2023 and the Supreme Court
vide order dated 20.11.2023 dismissed the same and upheld the order passed by
this Court.
13. The aforesaid judgment of OmPrakash Sahni's case (Supra) has a binding
effect upon all courts of the Country, therefore, the earlier judgment relied upon
by learned Counsel for appellant/convict reported in 2022 Live Law (SC) 788
Supreme Court of India "Sonadhar Vs. The State of Chhatisgarh" is
distinguishable and inapplicable to the facts of the case in hand. Ratio decidendi
of OmPrakash Sahni's case (Supra) squarely applies to the facts of the case in
hand. It is apt to reiterate here, that from the record it is discernable, that vide
impugned judgment of conviction and sentence dated 07.12.2017 rendered by
the court of learned Principal Sessions Judge Jammu, appellant/convict has been
awarded sentence to undergo rigorous imprisonment for life and to pay a fine of
Rs. 50,000/-. Without appreciating the prosecution evidence at this stage of
deciding the application for grant of bail to appellant/convict, we are of the
considered opinion that there is nothing apparent or gross on the face of the
record of the case from which this court can arrive at a prima-facie satisfaction
that the conviction against appellant/convict is not sustainable and ultimately the
appellant/convict has fair chances of acquittal.
14. Be that as it may, the applicant seeks his enlargement on bail primarily on
the ground that he is in jail for the last more than 16 years. A perusal of the
nominal roll of the applicant would reflect that though he remained in custody as
an under trial prisoner w.e.f. 09.12.1994 to 29.11.2003, however, as already
stated, the applicant thereafter jumped over the interim bail granted in his favour
by the trial court and did not surrender for more than 13 years, thereafter the
applicant is in custody w.e.f. 07.12.2017 till date, i.e. for a period of about 6
years only.
15. Also, a perusal of the order sheets reveals that the appeal has been taken
up for final hearing on several occasions, however, the matter could not be
finally heard because of time and again adjournments sought by learned counsel
for the appellant as well as due to non-availability of learned arguing counsel for
the appellant on several dates of hearing, i.e., 13.05.2019, 15.11.2019,
02.11.2021, 12.11.2021, 14.12.2021, 14.09.2022, 01.08.2023 and 07.11.2023.
Therefore, the delay in disposal of the main appeal in the present case, is
attributable to none other than the appellant/applicant only.
16. In view of the aforesaid discussion, we feel ourselves persuaded to hold
that the appellant/convict at this stage has miserably failed to carve out a strong
case for his release on bail. The application for release of appellant/convict on
bail, therefore, being misconceived under law is disallowed, rejected and
dismissed. CrlM No. 395/2023 stands disposed of.
Having regard to the fact that appellant/convict is in jail for more than 16
years and this appeal is pending since 2017, we deem it appropriate to expedite
the hearing of main appeal.
Since this appeal is already admitted, therefore, list in the 'Final Hearing'
column on 07.05.2024, higher up.
(Rajesh Sekhri) ) (Tashi Rabstan)
Judge Judge
Jammu:
20.04.2024
Pawan Angotra
Whether the order is speaking? Yes
Whether the order is reportable? Yes
