Jammu & Kashmir High Court
Vipin Pandita vs Union Territory Of Jammu And Kashmir on 7 February, 2022
Sr.No. 31
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
(Through Virtual Mode)
Bail App No. 222/2021
CrlM Nos. 1998 & 1348 of
2021
Reserved on: 02-02-2022
Pronounced on: 07-02-2022
Vipin Pandita Petitioner/accused
Through:- Sh. P. N. Raina, Sr. Advocate with
Sh. Jahanzaib A Hamal, advocate.
V/S
Union Territory of Jammu and Kashmir Respondent(s)
Through:- Sh. Amit Gupta AAG.
Coram: HON‟BLE MR. JUSTICE MOHAN LAL MANHAS, JUDGE
ORDER
07.02.2022
01. Petitioner/accused has sought indulgence of this court under the provisions of section 439 Cr.PC for his enlargement on bail on the grounds, that he is a citizen of India and is entitled to all the privileges and fundamental rights enshrined in the Constitution of India and the laws made there under concerning liberty of a person and life as guaranteed to him under Article 21 of the Constitution of India; he has been arrested on 02.04.2021 in FIR 63/2021 by the respondent for alleged commission of offences under Sections 489-B/489-D/120-B IPC; he filed an application before the court of Ld. Chief Judicial Magistrate Jammu, who vide order dated 15.04.2021 rejected his bail application; he filed another bail application before the court of Ld. Principal Sessions Judge Jammu, which on transfer, was heard and decided by Ld. Additional Sessions Judge Jammu vide order dated 22.05.2021 by declining the relief to the petitioner; the charge-sheet stands filed against him and other three (3) accused persons who have been granted bail by the courts; he is a patient of depression and a schizophrenic and is on aggressive medication and is aggrieved of the order dated 22.05.2021, whereby, his plea for bail was rejected by the Ld. Additional Sessions Judge 2 Bail App No. 222/2021 Jammu; he is innocent and law abiding citizen and has been falsely implicated and he has never committed any offence; his arrest and further incarceration would result in violation of his right to life guaranteed to him under Article 21 of the Constitution of India; it is true that society has a vital interest in grant or refusal of bail however it is equally true that the order granting or refusing the bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and of the society; the fundamental principle of criminal jurisprudence is that presumption of innocence of an accused always lies in his favor until he is found guilty; seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor; the provisions of Cr.P.C confer discretionary jurisdiction on criminal court to grant bail to accused pending trial or in the appeal against convictions since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right and liberty of an individual and the interest of the society; the object of bail is to secure the appearance of accused person at his trial by reasonable amount of bail and the object is neither punitive nor preventative; deprivation of liberty must be considered a punishment and the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and found guilty; he undertakes to abide by all the conditions imposed by Hon'ble Court, if released on bail.
02. Respondent has opposed the bail on the grounds, that the offences committed by the petitioner/accused u/ss 489-B/489-D/120-B IPC of police station Nowabad Jammu in FIR No. 63/2021 are very serious and against the society at large; the liberty of an individual is subject to reasonable restrictions and as in the present case the petitioner/accused has committed gruesome act therefore, he does not deserve any leniency of bail; it is the prosecution story that on 02.04.2021, I/C PP Talab Tillo Jammu has forwarded a cognizable DD Extract to P/S Nowabad depicting therein that Complainant Davinder Kumar lodged a written complaint against accused persons Sachin and Rohit to the effect that complainant is running Pan/Cigarette Shop at Talab Tillo area, during the course of investigation, I/O visited the spot and prepared the site plan and recorded the statement of complainant and also seized a note of Rs. 500/- of fake Indian currency 3 Bail App No. 222/2021 produced by the complainant whereby accused persons namely Sachin Kumar and Rohit Sharma were arrested and from their possession 02 notes of Rs. 500 each of fake Indian currency were recovered, and during questioning they disclosed that petitioner/accused Vipin Pandita gave them the fake currency note of Rs. 500/- to use it in the market on commission basis, whereby, petitioner/accused Vipin Pandita was arrested and on his disclosure (1.) a bundle of 127 notes of fake Indian Currency of Rs. 100 each (2.) 20 No. of printed pages having print of 03 notes of Rs. 100 on each page (3.) 10 sheets of Excel bond without any print on them (4.) 01 scale of steel having length 01 ft. (5.) 01 Scissor (6.) 01 tape of blue color and (7.) 01 shaving blade were recovered from the residential room of petitioner/accused Vipin Pandita at Udheywala; during questioning petitioner/accused disclosed that he with the help of Rajesh Ganjoo who owned a shop under name and style of Zodiac studio at Anand Nagar Bohri of Photostat and lamination, printed/edited these fake Indian Currency notes on his Desktop and printer, and on this information, Rajesh Ganjoo was arrested in the case and from his possession one CPU- Epson printer machine which was used to print fake Indian Currency notes was recovered from the shop; three (3) accused persons having bailed out whereas petitioner/accused Vipin Pandita is still in Judicial Custody; investigation has been closed as challan and offences under sections 489-B/489-D/120-B have been proved against all the four (4) persons.
03. Sh. P.N Raina, Ld. counsel for petitioner/accused while making out a strong case for enlargement of petitioner/accused on bail has vehemently argued, that the gravity of offence alone cannot be decisive ground to deny bail, protection of personal liberty is required against securing attendance of accused at trial, accused is presumed innocent till he is convicted, the court should adopt balanced approach to grant bail subject to certain conditions rather than to keep individuals under detentions for an indefinite period, and bail should not be denied to teach the accused a lesson for an offence which is yet to be proved. It is argued, that all of the co-accused persons have been enlarged on bails, and therefore, the principle of parity must apply to the case of petitioner/accused in the case in hand entitling him the concession of bail as the case of petitioner/accused is similar to that of the co-accused. It is vehemently argued, that the fundamental principle of criminal jurisprudence 4 Bail App No. 222/2021 is that presumption of innocence always lies in favor of accused until he is tried and found guilty and keeping of petitioner/accused in judicial custody in further incarceration will amount to inflicting a pre-right punishment which is against the mandate of criminal jurisprudence, bail is rule and jail is exception, the personal liberty of petitioner/accused is of paramount importance which cannot be deprived and he cannot be kept in detention for an indefinite period, the object of bail is to secure the appearance of the accused in the court to face trial and the deprivation of liberty must be considered as punishment and the court owe more than a verbal respect to the principle that punishment begins after convictions. To buttress his arguments, Ld. counsel has relied upon the decisions reported in (i) (2012) 1 Supreme Court Cases 40 (Sanjay Chandra- Appellant versus Central Bureau of Investigation- Respondent), (ii) 2020 (1) JKJ 96(HC) (Mushtaq Ahmed Shah versus State of J&K), (iii) (2021) 6 Supreme Court Cases 230 (Ramesh Bhavan Rathod versus Vishanbhai Hirabhai Makwana (Koli) and another) & (iv) 2021 (1) JKJ 376 (HC) (Bharat Bhushan versus UT of J&K).
04. Sh. Amit Gupta, Ld. AAG for respondent, per contra, has opposed the bail by projecting arguments, that petitioner/accused is involved in commission of offences u/ss 489-B/489-D/120-B of IPC which deal with counterfeit currency, and its circulation in the market could give rise to existence of a parallel economy which would be highly detrimental to the growth of the nation as the same affects the society as a whole, and in such cases the harm would be caused not only to an individual or to few individuals, and the adverse impact of trafficking and counterfeit currency in large scale would be disastrous. It is argued, that the approach of granting bail in such cases would encourage the petitioner/accused to indulge in similar offences again and again, moreover, a wrong signal/message will go to the society as a whole, and the act of petitioner/accused is an attempt to destabilize the economy of the country by circulating the counterfeit currency in the market, the offences indicted against petitioner/accused are economic offences which are detrimental for the economy of the country, the incarceration of the accused in the Judicial Custody is not a ground for granting bail to him. Ld. AAG to support his arguments, has relied upon the decisions (i) Mahipal vs Rajesh Kumar @ Polia and Another, (decided on 5 December, 2019 by 5 Bail App No. 222/2021 Hon'ble Supreme Court in Criminal Appeal No. 1843 of 2019 @SLP (Crl.) No. 6339 of 2019), (ii) Pramod Kumar Saxena vs Union of India and others, (decided on 19 September, 2008 by Hon'ble Supreme Court in Writ Petition (Crl.) 58 of 2007 and (iii) E.P. Ahammed vs State of Kerala (decided by Kerala High Court on 19 February 2010 in Bail Application No. 633 of 2010.
05. Heard Ld. Sr. Counsel for petitioners/accused & Ld. Counsel for respondent.
I have pursued the contents of bail applications and objections filed by the respondent. I have also bestowed my thoughtful consideration to the material aspects involved in the case, have scanned the judgments relied upon by both the sides and have gone through the relevant law on the subject matter meticulously.
06. Before deciding the case in hand, I would like to enumerate the factors which should be taken in consideration while granting or refusing bail in a non-bailable case. Hon'ble Supreme Court of India in case laws titled State of U.P vs Amarmani Tripathy, reported in 2005(8) SCC 21, vide paragraph- 18 and in CRIMINAL APPEAL NO. 448 OF 2021 (@ SPECIAL LEAVE PETITION (CRL.) NO. 3577 0F 2020) [SUDHA SINGH...
APPELLANT(S) VERSUS THE STATE OF UTTAR PRADESH & ANR. ...RESPONDENT(S), judgment delivered on 24-04-2021] has culled out certain factors to be taken in consideration while deciding bail application in non-bailable offences as under:-
"It is well settled that the matters to be considered in an application for the bail are:-
(I) whether there is any prima-facie or reasonable ground to believe that the accused has committed the offence; (II) nature and gravity of charge;
(III) severity of the punishment in the event of conviction; (IV) danger of the accused absconding or fleeing if released on bail; (V) character, behavior, means, position and standing of the accused;
(VI) likelihood of the offence being repeated; (VII) reasonable apprehension of the witnesses being tampered with; and (VIII) danger, of-course the justice being thwarted by grant of bail.
Indeed, these guidelines are not exhaustive, nonetheless, these have to be considered while passing an order in a bail application in a non-bailable offence.
07. The petitioner/accused along with co-accused namely Sachin Kumar, Rohit 6 Bail App No. 222/2021 Kumar and Rakesh Ganju are involved in fake currency racket. The legal position is well settled that even if there is a prima facie case against the accused, the approach of the court in the matter of bail should be that the accused should not be detained by way of punishment.
08. In this regard, Hon'ble J&K High Court in a case law reported in, 2010 (3) JKJ 129 (HC) [Jagdish Kumar & Ors. Versus State and Ors], the judgment/order rendered by Hon'ble Mr. Justice Sunil Hali (His Lordship the then was Hon'ble Judge of J&K High Court) while granting bail to accused indicted for commission of offences u/ss 306/498-A RPC and while discussing the principles of law in regard to „prima-facie case‟, „approach of court in matter of bail‟ and „question of influencing prosecution witnesses‟ 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 Ld. 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 Ld. 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.
09. Ratio of the judgment (Supra) makes the legal proposition 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.
10. 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 indicted for 7 Bail App No. 222/2021 commission of offences u/ss 12 POCSO Act r/w 342 RPC and while discussing the principles 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 paras 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 8 Bail App No. 222/2021 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.
11. Ratio of the judgment (Supra) also makes the legal proposition manifest, 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 and deprivation of personal liberty must be considered as punishment.
12. In (2012) 1 Supreme Court Cases 40 [SANJAY CHANDRA--Appellant versus CENTRAL BUREAU OF INVESTIGATION--Respondent, relied by Ld. Counsel for petitioners/accused, Hon'ble Supreme Court of India while granting bails to accused indicted in 2G Spectrum Scam Case for commission of offences u/ss 420-B, 468,471/109 IPC r/w Sec. 13(2) r/w 13(1) (d) of the Prevention of Corruption Act, 1988 and while expounding the principle of law that ‗the object of bail is to secure appearance of accused persons at trial and deprivation of liberty is a punishment', in paras 21, 22, 24, 25, 29, 34, 35 & 36 of the judgment/order observed as under:-
21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands 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. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.
24. In the instant case, as we have already noticed that the ―pointing finger of accusation‖ against the appellants is `the 9 Bail App No. 222/2021 seriousness of the charge'. The offences alleged are economic offences which has resulted in loss to the State exchequer. Though, they contend that there is possibility of the appellants tampering witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor: The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and Prevention of Corruption Act.
Otherwise, if the former is the only test, we would not be balancing the Constitutional Rights but rather ―recalibration of the scales of justice.‖
25. The provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts to grant bail to accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the Ld. District Judge, which is affirmed by the High Court, in our opinion, a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual.
29. In Gudikanti Narasimhulu v. Public Prosecutor, V.R. Krishna Iyer, J., sitting as Chamber Judge, enunciated the principles of bail thus: SCC pp. 242-46, paras 3, 5-9 & 13 "3. What, then, is "judicial discretion" in this bail context? In the elegant words of Benjamin Cardozo:
The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ―the primordial necessity of order in the social life‖. Wide enough in all conscience is the field of discretion that remains.‖ Even so it is useful to notice the tart terms of Lord Camden that ―the discretion of a Judge is the law of tyrants: it is always unknown, it is different in different men; it is casual, and depends upon constitution, temper and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly and passion to which human nature is liable....‖
5......Perhaps, this is an overly simplistic statement and we must remember the constitutional focus in Articles 21 and 19 before following diffuse observations and practices in the English system. Even in England there is a growing awareness that the working of the bail system requires a second look from the point of view of correct legal criteria and sound principles, as has been pointed out by Dr Bottomley.10 Bail App No. 222/2021
6. Let us have a glance at the pros and cons and the true principle around which other relevant factors must revolve.
When the case is finally disposed of and a person is sentenced to incarceration, things stand on a different footing. We are concerned with the penultimate stage and the principal rule to guide release on bail should be to secure the presence of the applicant who seeks to be liberated, to take judgment and serve sentence in the event of the Court punishing him with imprisonment. In this perspective, relevance of considerations is regulated by their nexus with the likely absence of the applicant for fear of a severe sentence, if such be plausible in the case. As Erle. J. indicated, when the crime charged (of which a conviction has been sustained) is of the highest magnitude and the punishment of it assigned by law is of extreme severity, the Court may reasonably presume, some evidence warranting, that no amount of bail would secure the presence of the convict at the stage of judgment, should he be enlarged. Lord Campbell, C.J. concurred in this approach in that case and Coleridge J. set down the order of priorities as follows:
―I do not think that an accused party is detained in custody because of his guilt, but because there are sufficient probable grounds for the charge against him as to make it proper that he should be tried, and because the detention is necessary to ensure his appearance at trial .... It is a very important element in considering whether the party, if admitted to bail, would appear to take his trial; and I think that in coming to a determination on that point three elements will generally be found the most important: the charge, the nature of the evidence by which it is supported, and the punishment to which the party would be liable if convicted.
In the present case, the charge is that of wilful murder; the evidence contains an admission by the prisoners of the truth of the charge, and the punishment of the offence is, by law, death.‖
7. It is thus obvious that the nature of the charge is the vital factor and the nature of the evidence also is pertinent. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue.
8. Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being.
9. Thus the legal principles and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record -
particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about 11 Bail App No. 222/2021 the criminal record of a defendant is therefore not an exercise in irrelevance.
13. Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with a grave offence, has been acquitted at a stage, has the intermediate acquittal pertinence to a bail plea when the appeal before this Court pends? Yes, it has. The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the Court's verdict once. Concurrent holdings of guilt have the opposite effect. Again, the ground for denial of provisional release becomes weaker when the fact stares us in the face that a fair finding
-- if that be so -- of innocence has been recorded by one Court. It may not be conclusive, for the judgment of acquittal may be ex facie wrong, the likelihood of desperate reprisal, if enlarged, may be a deterrent and his own safety may be more in prison than in the vengeful village where feuds have provoked the violent offence. It depends. Antecedents of the man and socio-geographical circumstances have a bearing only from this angle. Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and police prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the Court into a complacent refusal.‖
34. More recently, in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra this Court observed that:
(SCC p. 728, para 84) ―(84) just as liberty is precious to an individual, so is the society's interest in maintenance of peace, law and order. Both are equally important.‖
35. This Court further observed: (Siddharam Satlingappa case SCC p737, para 116) ―116. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.‖
36. This Court has taken the view that when there is a delay in the trial, bail should be granted to the accused [See Babba v. State of Maharashtra, Vivek Kumar v. State of U.P. & Mahesh Kumar Bhawsinghka v. State of Delhi.
13. Ratio of Sanjay Chandra's Case (Supra) makes the legal provisions vis-à-
vis bail abundantly clear, that the principle rule to guide release on bail is, ―to secure the presence of accused during trial, the object of bail is neither punitive nor preventative, deprivation of liberty must be considered a punishment, the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and duly found guilty‖.
12 Bail App No. 222/202114. In (2021) 6 Supreme Court Cases 230 (Ramesh Bhavan Rathod Versus Vishanbhai Hirabhai Makwana (Koli) and another), 2020 (1) JKJ 96[HC] (Mushtaq Ahmad Shah Versus State of J&K through Police Station Srigufwara) and 2021(1) JKJ 376[HC] ( Bharat Bhushan Versus UT of J&K through Crime Branch), relied by learned senior counsel for petitioners/accused, it has been held that the co-accused should be granted bail on the ground of parity. The judgments (i) Mahipal vs Rajesh Kumar @ Polia and Another, (decided on 5 December, 2019 by Hon'ble Supreme Court in Criminal Appeal No. 1843 of 2019 @SLP (Crl.) No. 6339 of 2019),
(ii) Pramod Kumar Saxena vs Union of India and others, (decided on 19 September, 2008 by Hon'ble Supreme Court in Writ Petition (Crl.) 58 of 2007 and (iii) E.P. Ahammed vs State of Kerala (decided by Kerala High Court on 19 February 2010 in Bail Application No. 633 of 2010 (supra) relied upon by the learned counsel for the respondent do not lay down an invariable rule of law that in non-bailable offence the bail should not be granted to the accused. It is apt to reiterate here, that although the nature and gravity of offences are serious against petitioner but it is not only the ground to refuse the bail. The maximum punishment provided for the offences indicted against the petitioner/accused is life punishment or an alternate punishment of 10 years. Nothing has been placed on record by the respondent showing that the petitioner/accused would tamper the prosecution evidence or intimidate the prosecution witnesses or there is likelihood of the offence being repeated by the accused.
15. In view of the plethora of judgments referred by learned counsel for petitioner/accused, concept of ‗personal liberty' as enshrined in Article-21 of the Constitution of India is of paramount importance and the general rule is that ‗bail is rule' and ‗jail an exception'. The petitioner/accused from the date of his arrest on 02.04.2021 for almost ten months is lying at present in judicial custody District Jail, Amphalla Jammu. The fundamental postulate of criminal jurisprudence is that an accused is presumed to be innocent till guilt is proved against him. Keeping of petitioner/accused in continuous detention would amount to infringement of his fundamental right to life and liberty and his detention would amount to inflicting pre-trial punishment which is against the mandate of criminal jurisprudence, as punishment can only be inflicted after full flagged trial and after holding the accused guilty.
13 Bail App No. 222/202116. In view of the aforesaid discussion, it is amply clear, that there would be no danger of the course of justice being thwarted if petitioner/accused is enlarged on bail as all other co-accused have already been enlarged on bails by the courts below. Therefore, petitioner/accused has also carved out a strong case for grant of bail in his favour. The bail application succeeds and is allowed. Accordingly, petitioner/accused is admitted to bail subject to his furnishing one surety bond in the sums of Rs. 50,000/- to the satisfaction of Registrar Judicial this Court with furnishing of personal recognizance of like amount before Superintendent District Jail, Ambphalla Jammu. Before parting, the following conditions are imposed upon the petitioners/accused;
(i) that the petitioner/accused shall not influence the prosecution witnesses or intimidate them or dissuade them from deposing before the court;
(ii) that the petitioner/accused shall appear before the trial court on each and every date of hearing during the trial except for special circumstances beyond their control;
(iii) that in case respondent collects any material during the period the petitioner/accused is on bail that he is influencing the witnesses or have tried to intimidate them the prosecution would be within their rights to move an application before this court for cancellation of his bail.
17. Disposed off accordingly.
(Mohan Lal Manhas)
Jammu Judge
07-02-2022
Manan