Jammu & Kashmir High Court
Naseer Ahmed And Ors vs Ut Of J & K on 18 April, 2022
Author: Mohan Lal
Bench: Mohan Lal
Sr. No.122
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Bail App No.100/2022
Reserved on : 13.04.2022
Pronounced on :18-04-2022
Naseer Ahmed and Ors. .... Petitioner(s)
Through :- Sh. Ajaz Choudhary, Advocate
V/s
UT of J & K. ....Respondent(s)
Through :- Sh. Adarsh Bhagat GA
Coram: HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
ORDE R
18 .04 .2022
1. Applicants as many as 15 in Nos. have moved petition before this court in terms of section 438 Cr.pc for grant of anticipatory bails in their favour in FIR No. 0043/2022 dated 04-03-2022 registered with police station Mendhar (Poonch) for commission of offences u/ss 307/34/342/447 & 323 IPC. It is averred, that applicants are permanent residents of U.T. of Jammu & Kashmir and citizens of India; that the father of applicants namely Mohd Shafi and husband of complainant are co-sharers in regard to land comprised in Khasra Nos. 270/277 & 354 situated in village Sakhi Madain Tehsil Mendhar District Poonch whereby their names stand recorded in latest Khasra Girdawari of year 2020 regarding which a civil suit is pending before the court of Munsiff Mendhar titled Shah Mohd & Ors., wherein, the court has passed status-qua order in the year 2018; that the husband of complainant alongwith other persons want forcible possession of the aforesaid land from the applicants and to achieve the said purpose, on 01-06-2021 they came in the aforesaid land of father of applicants with tractor, damaged the crops of applicant, pelted stones upon the father of applicants, in which regard father of applicants filed application before police station Mendhar whereby FIR No. 0228/2021 dated 11-06-2021 was registered; that on 30-06-2021 husband of complainant alongwith other persons attacked Buha Bi when they were working in the field and during the scuffle aunt of applicants received injuries on her head whereby FIR bearing No. 0262/2021 dated 06-07-2021 was registered; that the complainant after sensing trouble in violation of attachment order passed by 2 Bail App No. 100/2022 Tehsildar Mendhar affecting the property being a threat to the loss of life and property trespassed in the land of applicants on 04-03-2022, started attacking the relatives of applicant including old aged father and in the said attack petitioner's family members including Shabnam Kousar alongwith other family members were injured whereby FIR No. 0045/2020 of police station Mendhar was registered; that the complainant namely Naseem Akhter got registered FIR bearing No. 0043/2022 dated 04-03-2022 at police station Mendhar for commission of offences 307/34/342/447/323 IPC with ulterior motive to wreck vengeance upon applicants; that the applicants have deep roots in the society and there is no occasion for them to jump over the bail and they do not want bail in case where punishment provided is death or life imprisonment and they shall abide by the conditions imposed by the court.
2. On the presentation of the petition, Ld. GA appeared and waived notice on behalf of respondents and sought time for filing objections, however, in the meantime applicants/accused were granted interim anticipatory bail in FIR No. 0043/2022 for commission of offences u/ss 307/34/342/447/323 IPC.
3. Ld. GA has filed objections/status report wherein it has been specifically contended, that initially the case was registered against applicants u/s 307 IPC etc. wherein injured lady Mst. Bhaggoo Bi was shifted to SDH Mendhar, whereafter, she was referred to GMC Jammu for specialized treatment, but during the treatment the above named lady succumbed to his injuries on 20- 03-2022 and accordingly offence u/s 302 IPC was added in the case. It is contended, that interim bail granted to accused persons is in context to offence u/s 307 IPC but now offence u/s 302 IPC has been added, moreso, accused persons have not appeared in the police station or before the investigating agency nor they have furnished bail order or presented themselves in the investigation which is at it's very initial stage and offences committed by the accused persons are most heinous and their custody is required for the purpose of investigation. It is moreso contended, that accused persons have forcibly constructed a kacha house in the land regarding which they have old enmity with complainant Naseem Akhter, accused persons confined the relatives of complainant lady by locking them in their house, but she unlocked her relatives and set them free from the confinement and when her mother-in-law Mst Bhaggo Bi w/o Shah Mohd alongwith her relatives tried to forbid the accused persons, the accused persons attacked them with 3 Bail App No. 100/2022 sharp edged weapon tokas/iron roads, as a result, her mother-in-law and other relatives received injuries, Hon'ble High Court on 17-03-2022 granted interim bail to 15 applicants/accused upto 11-04-2022, Mst. Bhaggo Bi has succumbed to her injuries during her treatment on 22-03-2022 and accordingly offence u/s 302 IPC has been added. It is contended, that as offence u/s 302 IPC is added, Hon'ble Court is requested to issue orders/directions u/ss 439(2) Cr.pc for arrest of the accused persons.
4. Ld. Counsel for applicants/accused has vehemently argued, that as the applicants/accused have been granted bail by this court, the investigating agency on addition of offence u/s 302 IPC cannot straightway proceed to arrest the applicants/accused, and for arresting the applicants/accused the investigating agency has to move proper application before the High Court which granted the bail, and as the investigating agency has failed to lay proper motion before this court, the interim anticipatory bail granted to applicants/accused on 17-03-2022 be made absolute. To support his arguments, Ld. Counsel has relied upon (i) 2019 Legal Eagle (SC) 687 Supreme Court of India (Pradeep Ram Versus State of Jharkhand and Anr. &
(ii) Fayaz Ahmad Khan & Anr Vs State Through Police Station on 03 October 2018 CRMC No. 270/2018 IA No. 01/2018.
5. Ld. GA has strenuously argued, that initially the interim anticipatory bail was granted to applicants/accused on 17-03-2022 in FIR No. 43/2022 u/ss 307/34/342/323/447 IPC of P/S Mendhar which was continuing till today, but as the injured lady Mst. Bhaggo Bi during her specialized treatment in GMC Jammu has succumbed to the injuries and offence u/s 302 IPC has been added by the investigating agency, the interim anticipatory bail granted to applicants/accused in view of heinousness of the offence of murder u/s 302 IPC needs its outright rejection, and the custody of accused persons is required for the purpose of investigation.
6. I have heard Ld. Counsel for applicants/accused and Ld. GA for respondent. I have gone through the judgments referred to me by Ld. Counsel for applicants/accused and have also bestowed my thoughtful consideration to the relevant provisions of law.
In 2019 Legal Eagle (SC) 687 SUPREME COURT OF INDIA (Pradeep Ram Versus State of Jharkhand and Anr.) relied 4 Bail App No. 100/2022 by Ld. Counsel for applicants/accused, Hon'ble Supreme Court while discussing the provision of law that in a case where accused has already been granted bail, whether the investigating agency on addition of new offence has power to proceed with the arrest of accused, in para 29 of the judgment held as under:-
29. In view of the foregoing discussions, we arrive at following conclusions in respect of a circumstance where after grant of bail to an accused, further cognizable and non-bailable offences are added:-
(i) The accused can surrender and apply for bail for newly added cognizable and non-bailable offences. In event of refusal of bail, the accused can certainly be arrested.
(ii) The investigating agency can seek order from the court under Section 437(5) or 439(2) of Cr.P.C. for arrest of the accused and his custody.
(iii) The Court, in exercise of power under Section 437(5) or 439(2) of Cr.P.C., can direct for taking into custody the accused who has already been granted bail after cancellation of his bail.
The Court in exercise of power under Section 437(5) as well as Section 439(2) can direct the person who has already been granted bail to be arrested and commit him to custody on addition of graver and non-cognizable offences which may not be necessary always with order of cancelling of earlier bail.
(iv) In a case where an accused has already been granted bail, the investigating authority on addition of an offence or offences may not proceed to arrest the accused, but for arresting the accused on such addition of offence or offences it need to obtain an order to arrest the accused from the Court which had granted the bail.
In Fayaz Ahmad Khan & Anr Vs State Through Police Station Tarzua Sopore (Kashmir) CRMC No. 270/2018 IA No. 01/2018 ) relied by Ld. Counsel for applicants/accused, Hon'ble J&K High Court while observing that when an offence is added, the order of bail granted earlier has to be set aside or modified by a positive order, in paras 3 & 4 of the judgment held as under:-
03. The moot question that arises for determination in this petition is that when a new offence is added in a case during its investigation, can the order of bail passed earlier in point of time be recalled or to put in other words does it become redundant the answer to this question is an empliatic "No" .
The law is lucid and clear on the subject. The Apex Court of the Country in a petition for Special Leave to Appeal (Crl.) bearing No. 10179/2017 arising out of the impugned final judgment and order dated 21.09.2017 passed in CRLWP No. 3532/2017 by the High Court of Judicature at Bombay in case titled "Manoj Suresh Jadhav & Ors Vs. The State of Maharashtra" wherein the police authorities had added an offence U/s 376 of the Indian Penal Code in the FIR against the petitioners and re-arrested them held that it is not permissible for the respondent/State to simply re-arrest the 5 Bail App No. 100/2022 petitioners by ignoring the order dated 2.06.2016 passed by the learned Additional Sessions Judge, Pune which was in force at that time and accordingly the Apex Court directed that the petitioners shall be released on bail on the same condition/s as imposed in the aforesaid order dated 2.06.2016 by the learned Sessions Judge, Pune. In case titled "Dhivan Vs. State"bearing criminal No. 4535 of 2010,a Ld. Single Judge of the Madrass High Court held that In view of the above discussions, I have no hesitation to hold that simply because a penal provision is added in the case in respect of a serious non- bailable offence, the bail granted earlier shall not automatically stand cancelled and therefore, the police shall not have the power to re-arrest the accused until the bail granted earlier is cancelled by way of a positive order by the appropriate court. In the instant case, since the bail granted to the petitioner earlier by the learned Magistrate has not so far been cancelled, the apprehension of arrest at this stage when the petitioner is very much on bail is baseless and so, the question of granting anticipatory bail does not arise. Again in the case of "Sukhpal Vs. State of Rajasthan" reported in 1988 1 RLW (Raj) 283, the High Court held consequently, the bail application bearing number 2437/1987, under S. 438 Cr. P.C should have been allowed but as I have taken a view that no case for cancellation of bail granted under the order dated 3.08.87, is made out and no fresh application under S. 438 Cr. P.C. was maintainable merely on the ground that a further offence under Ss. 307 and 438 Cr. P.C was added. Therefore, it is directed that the order dated 3.08.1987, will hold good, even if the above named two offences which were latter on added during the investigation, more so, when no case for cancellation of bail is made out. In the case titled "Deoman Vs. The State of Maharashtra & Ors" reported in 2015 0 Supreme (Mah) 1998; it was held that it is true that some time after, the prosecution added section 326 offence in crime No. 151/2013 that was registered at Police Station Digras against the non-applicant Nos. 2 to 11 and when this offence was added against them, the non-applicant Nos. 2 to 11 were already enlarged on bail. After addition of the offence, the propriety required that the non- applicant Nos. 2 to 11 were given notice of the addition of the said offence against them and heard on the need of their being committed to Magisterial Custody. 4. Taking a cue from the clear enunciations of the law laid down above, the procedure adopted by the Ld. Additional Sessions Judge, Sopore does not appear to be in tune and in line with the mandate of law for the simple reason that at a time when the accused were committed to custody, the bail order was intact and in force. It is a trite law that when an offence is added, the order of bail granted earlier has to be set aside or modified by a positive order as there can be no automatic suspension of the order directing the grant of bail earlier in point of time. The SHO of Police Station had no locus to file an application before the Court on behalf of the prosecution and propriety 6 Bail App No. 100/2022 demand that at least notice should have been given to the accused petitioners herein by the trial Court before committing them to custody, so that a semblance of fairness could have been attached to the order.
04. Taking a cue from the clear enunciations of the law laid down above, the procedure adopted by the Ld. Additional Sessions Judge, Sopore does not appear to be in tune and in line with the mandate of law for the simple reason that at a time when the accused were committed to custody, the bail order was intact and in force. It is a trite law that when an offence is added, the order of bail granted earlier has to be set aside or modified by a positive order as there can be no automatic suspension of the order directing the grant of bail earlier in point of time. The SHO of Police Station had no locus to file an application before the Court on behalf of the prosecution and propriety demand that at least notice should have been given to the accused petitioners herein by the trial Court before committing them to custody, so that a semblance of fairness could have been attached to the order. Ratios of the judgments (Supra) make the legal proposition abundantly clear, that the investigating agency on addition of new non-bailable offence during the investigation can seek order from court for arrest of the accused and his custody and the court in exercise of power u/s 437(5) or 439(2) of Code of Criminal Procedure has the power to direct for taking into custody the accused who has/have already been granted bail after cancellation of the same. In the case in hand, injured Bhaggo Bi suffering grievous injuries by the attack of applicants/accused with sharp edged weapons viz; toka/iron rods during her specialized treatment in GMC Jammu has succumbed to her injuries on 20-03- 2022, and accordingly, offence of murder u/s 302 IPC has been added in the said FIR No. 43/2022 in addition to the already offences u/ss 307/34/343/323/447 IPC of P/S Mendhar. Ld. GA in his status report/objections has requested/prayed for issuance of order/direction u/s 439(2) Cr.pc for arrest of accused persons. This court on 17-03-2022 granted interim anticipatory bail to applicants/accused which was continuing till date. With the death of injured Bhaggo Bi and addition of offence of 302 IPC, the applicants/accused are now indicted for heinous and graver offence, therefore, the interim anticipatory bail granted to applicants/accused is not legally permissible, as there is every likelihood of the applicants/accused absconding and giving slip to the law. Therefore, the interim anticipatory bail granted to applicants/accused on 17-03-2022 and extended till date stands cancelled. Vested with the powers u/s 437(5) or 439(2) of Cr.pc, it is directed, that applicants/accused require to be arrested and committed to custody by the 7 Bail App No. 100/2022 investigating officer on addition of graver and non-bailable offence of murder u/s 302 IPC against them.
7. Disposed off accordingly.
(Mohan Lal) Judge Jammu:
18.04.2022 Vijay