Jammu & Kashmir High Court - Srinagar Bench
Sumaiya Rasool & Anr. vs State Of Jk Through Station House ... on 4 October, 2018
Bench: Chief Justice, Alok Aradhe
Serial No. 31
Regular List
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
CRA No. 37/2018 Date of reserve: 01.10.2018
IA No. 01/2018 Date of decision: 04.10.2018
Sumaiya Rasool &Anr.
Vs.
State of J&K through Station House Officer, Anantnag
Coram:
HON'BLE THE CHIEF JUSTICE.
HON'BLE MR. JUSTICE ALOK ARADHE, JUDGE
Appearance:
For appellant(s): Mr M. A. Qayoom, Adv.
For respondent(s): Mr. Asif Ahmad Bhat, AAG
i. Whether to be reported in
Press/Media? Yes
ii. Whether to be reported in
Digest/Journal? Yes
GITA MITTAL, CJ
1. The instant appeal has been filed assailing an order dated 24 th July, 2018 passed by the Principal Sessions Judge, Anantnag, whereby the second bail application dated 9th June, 2018 filed by Sumaiya Rasool and Tanfy Rasool, the appellant for grant of bail in FIR No. 60/2018 registered by Police Station, Anantnag under Sections 147/148/149/336/341/427/307/120-B RPC, Ranbir Penal Code ('RPC' hereafter), Section 3/4 of the Jammu & Kashmir Public Property (Prevention of Damages) Act, 1985 (PPPD Act 'hereafter') and Sections 18/20/28 of Unlawful Activities (Prevention) Act, 1967 [(ULA(P) Act' hereafter).]
2. We note that the impugned order is based on a judgment dated 31 st May 2018 in CRA no. 28/2018 by a Division Bench of this court comprising Justice Alok Aradhe and Justice M. K. Hanjura. Before commencing with the hearing CRA No. 37/2018 Page 1 of 30 on 1st October 2018, we had consequently put to counsel for the parties that one of us (Alok Aradhe, J) had taken a view in the order dated 31st May 2018. Counsel for both parties stated that they have no objection to this Bench hearing this matter. We have recorded this fact in our order on 1 st October 2018. We accordingly proceeded with the hearing as this matter brings out facts subsequent to the decision dated 31st May 2018 as well.
3. Mr. Asif Ahmad Bhat, learned AAG has also produced the record which he was directed to do so by our order dated 18th September, 2018.
4. We have heard Mr. M.A. Qayoom, learned counsel for the appellants and Mr. Asif Ahmad Bhat, learned Additional Advocate General for the State at great length.
5. The facts giving rise to the present appeal are within a narrow compass and to the extent necessary are briefly noted hereinafter :
6. It is the contention of the State that information was received at 7.45 a.m on 18th April, 2018, that at KP Road near the Shahi Bakery, Anantnag, a mob of about one thousand persons had formed an unlawful assembly and started pelting stones on the vehicles by which damage was caused to the public property. Premised on this information, FIR No. 60/2018 was registered by the Police Station, Anantnag, under the aforesaid legal provisions. Investigation was set in motion as a result.
7. We find that the Superintendent of Police, Anantnag is the Investigating Officer in FIR No. 60/2018, who has filed a status report in response to the bail applications before the learned Principal District Judge giving some details of the steps taken during the investigation. This status report discloses that during investigation, the police is stated to have recorded the statements of witnesses, prepared a site plan, seizure memo and filled form of injuries. Furthermore, it is disclosed by the Investigating Officer that "10 youths who were leading the CRA No. 37/2018 Page 2 of 30 unruly mob and were pelting stones, were arrested on spot and presently are on interim bail".
8. It is additionally disclosed in the status report that, on 19th April, 2018, the District Special Branch (DSB) Anantnag submitted a secret report vide letter No. 41-SR-DSB-Ang dated 19th April, 2018 with regard to the presence of Syeda Asiya Andrabi (Chairperson of an organization known as "Dukhtaran-e- Millat") and her associates. It is stated that the report revealed that these ladies were staying in the area adjacent to the Women Degree College, Anantnag, that they had hatched a criminal conspiracy and provoked the students of Women Degree College Anantnag and adjoining private coaching centers to resort to violence in the garb of the protests. On the instigation of Syeda Asiya Andrabi and her associates, the students of these colleges protested, resorted to violence, pelted stones on moving vehicles of security forces, civilians, shops as well as the security forces deployed for law and order duties. The unruly mob also raised slogans against the State in favour of terrorist organization and their leaders. Accordingly, the offence of Section 120-B RPC was added in the case.
9. So far as the arrest of the appellants is concerned, according to the afore noticed report filed by the Investigating Officer before the Court of Principal Sessions Judge, Anantnag, the police raided the house of "Mohd Masood S/o Mohd Syed R/o Wagay Check, Anchidoora Anantnag and arrested the following persons on 20th April, 2018":
(i) Syeda Asiya Andrabi W/o Ashiq Hussain Factoo R/o 90 Feet Soura.
(ii) Nahida Nasreen W/o Manzoor Ahmad Malimk R/o Drangbal Pampore.
(iii) Sofi Fahmeda D/o Mohd Sadiq Sofi R/o Seekibagh Lalbazar Srinagar.
(iv) Sumaiya Rasool D/o Gh. Rasool Wani R/o Hajipora Khiram Anantnag (appellant No. 1 herein)
(v) Tanfe @ Urfee Rasool D/o Gh. Rasool Wani R/o Hajipora Khiram Anantnag.(appellant No. 2 herein).CRA No. 37/2018 Page 3 of 30
10. It would also be pertinent to note that during the course of investigation, the searches were affected by the Investigating Officer. As per the report filed by the Investigation Officer in response to the first bail application filed by the appellants, it is stated that on the personal searches of Syeda Asiya Andrabi, Nahida Nasreen and Sofi Fahmeeda respectively, three mobile phones and other objectionable material were recovered from their custody which was a threat to the security of the State and also revealed nexus with terrorist organization based in Pakistan.
11. This status report mentions that Syeda Asiya Andrabi was the Chairperson; Nahida Nasreen was the General Secretary while Sofi Fehmeeda was a Private /Press Secretary of Dukkhtaran-e-Milat, of an organization banned under the ULA(P) Act.
12. So far as Sumaiya Rasool and Tanfe @ Urfee Rasool are concerned, they are alleged to be active workers/members of the said organization. It was alleged that they were in active contact with the accused Syeda Asiya Andrabi and remained active in unlawful activities of the banned organization.
13. In as much as, the present appeal has been filed on behalf of Sumaiya Rasool and Tanfe @ Urfe Rasool, we are confining our consideration to the allegations made against these two sisters alone.
14. In this background, the appellants had filed an application seeking grant of bail and release from custody before the learned Principal Sessions Judge, Anantnag, who had issued notice to the respondent and asked it to file a report. As noted above, the report was filed under the signature of the Superintendent of Police, Anantnag as the investigating officer in the case. We have set out the outcome of the investigation conducted up to the date of filing of the report in the first bail application.
CRA No. 37/2018 Page 4 of 3015. The learned Principal Sessions Judge, Anantnag considered the prayer for bail and by an order dated 18th May, 2018 admitted all the five arrested women, inter alia, on the following grounds:-
(i) that there was no evidence which revealed that the accused persons had conspired or incited other persons for the commission of terrorist acts orof any terrorist act having been done by the accused persons.
(ii) that the FIR was silent to the extent of the presence of any ladies in the mob who had pelted stones on 18th April, 2018.
(iii) that the statement of witnesses recorded by the police under Section 161 Cr. P. C had not been forwarded to the Magistrate as envisaged under Section 162 of the CrPC.
(iv) that even if it could be presumed that the accused persons incited the mob for pelting stones, then whether such an act could be considered as terrorist act or an offence under Sections 18/20 and 38 of the ULA(P) Act.
(v) that in the present case, no bomb, dynamite or other explosive material have been used by these persons at Anantnag during the incident and, as such, there was no reasonable ground to believe that the accused are involved in the commission of the said offences under ULA(P) Act.
(vi) that in a docket to Police Post Bus Stand Anantnag from the Officer Commanding 116 Bn. CRPF, it had been alleged that unidentified youth started gathering near Shahi Bakery and were demanding justice for Asifa; that these youth blocked the road and started pelting stones in which one jawan was injured. This action revealed that these acts were not terrorist acts but were a law and order problem of the State.CRA No. 37/2018 Page 5 of 30
(vii) that mere membership of even a banned organization cannot be treated as an offence under Sections 18/20 and 38 of the ULA(P) Act. Therefore, there was no reasonable ground to believe that the accusation against the accused persons do not make out a case under ULA(P) Act against the accused.
(viii) that the contents of recovered documents and messages on the mobile phones of Syeda Asiya Andrabi, Nahida Nasreen and Sofi Fahmeeda with persons across the border cannot be considered as terrorist acts.
(ix) that at the most, an offence under Section 10 of ULA(P) Act, could be stated to be prima facie made out against the accused persons and that this statutory provision is not covered under Chapter IV and VI of the said Act. Thus the prohibition under Section 43-D(5) of ULA(P) does not come into operation.
(x) that the allegations do not make out even offence under Section 307 RPC against the accused persons. Presuming that such offence was made out, however, this offence was not hit by the rider under Section 497 Cr. P. C.
(xi) that all the accused persons are local persons belonging to the J&K State and have deep roots in the society.
(xii) that the witnesses are not related to the accused persons and that there was no apprehension of tampering with the prosecution evidence or misusing of the order of bail.
(xiii) that grant of bail is the rule while refusal an exception.
(Emphasis by us) In view of the above discussion, the learned Sessions Judge, Anantnag by his order dated 18th May, 2018 admitted all the five accused persons, CRA No. 37/2018 Page 6 of 30 including the present appellants, to bail subject to the conditions set out in the order.
16. This order of learned Principal Sessions Judge, Anantnag was assailed by the State by way of Criminal Appeal No. 28/2018 before this Court. By an order dated 31st May, 2018 of the Division Bench comprising of Justice Alok Aradhe, J and Justice M.K. Hanjuria, J., disagreed with the findings of the learned Principal Sessions Judge, holding inter alia as follows :
"11. Thus from the perusal of the police report which is referred to in preceding paragraph, in our considered opinion, the action of the respondents would fall within the purview of Section 15(1)(a)(ii) read with Section 18 of the 1967 Act. From further perusal of the report, it is also axiomatic that there are reasonable grounds for believing that accusations against the respondents are prima facie true. It is also noteworthy that the investigation in the case is in progress and the respondents have to be interrogated for their involvement in the commission of the offences. In view of the provisions contained in the 1967 Act, which is a special provision, the age old maxim that grant of bail is the rule and the refusal is an exception does not hold good in a case like the present one provided the Court comes to the conclusion that there are reasonable grounds to believe that he accusations leveled against the accused persons are prima facie true. In view of Sections 15, 18, 43-D(5) of the 1967 Act and the material available in the police report, in our considered opinion, the Trial Court has exercised the discretion to grant the bail in an erroneous manner."
The Division Bench quashed the order dated 18th May, 2018 of the Principal District Judge, Anantnag and allowed the appeal filed by the State.
17. We are informed that as a result, the appellants were rearrested on 5th June, 2018.
18. A second application seeking grant of bail came to be filed on 9 th June, 2018 by the two appellants, this time emphasizing the distinction between the facts of their case and that of the three other accused persons namely, Syeda CRA No. 37/2018 Page 7 of 30 Asiya Andrabi, Nahida Nasreen and Sofi Fahmeeda. In this application, the appellants have pointed out that even as per the report filed by the Investigating Officer, i.e., the Superintendent of Police, these two appellants were not shown as involved in any offence and that no role has been scribed to them specifically. The appellants denied membership of any banned organization. It was pointed out that there was no material on record supporting the allegation that these two appellants are members of or of their being associated with the banned organization. It is also contended that there is no material to support their involvement in any terrorist act. It was further categorically stated that so far as investigation into the cases in respect of both of them was concerned, it was complete in all respect and their incarceration was unnecessary.
19. It was further pointed out that one of the appellants was pursuing M.A (Economics) and had to appear in the examination. If she was not allowed to sit in the examination, her academic career would be ruined.
20. The appellants specifically contended that they would not flee from justice and would not thwart the course of justice as they have their ancestral property situated within the jurisdiction of the Court and had deep roots in the society. In the bail application, the appellants tendered an assurance that they would cooperate with the investigating agency and would not intimidate the witnesses if enlarged on bail.
21. Once again objections were filed to the bail application repeating what had been stated in the earlier status report filed by the investigating officer.
22. The learned Principal Sessions Judge, Anantnag considered the matter and by an order dated 24th July, 2018, placing reliance on the order dated 31st May, 2018 of this Court, rejected the bail application holding that there was a legal bar created under law for the grant of bail for the reason that the judgment dated 31stMay, 2018 returned the finding that the acts attributed to the accused CRA No. 37/2018 Page 8 of 30 persons fall within the ambit of Section 15(1) (a) (ii) read with Section 18 of the ULA (P) Act.
It is noteworthy that upon examination of the Case Diary of the police, the learned Principal District Judge has also observed that no new fact or change of circumstances after the last bail application has emerged in the case.
23. Mr. M. A. Qayoom, learned counsel for the appellants has assailed this order dated 24th July, 2018 on several grounds which we shall consider hereafter.
24. It has been vehemently contended that the said order fails to consider the binding judicial precedents on the issue as to the consideration which must weigh with the court for exercise of discretion to admit the accused persons to bail. Therefore, before dealing with the factual context placed before us, we deem it appropriate to refer to the law which has to guide our consideration of the submissions made before us.
25. The offences for which the appellants before us stand implicated are undoubtedly of a serious nature. The respondents would contend that this implication justifies rejection of the present appeal. But, what this Court has to examine is the question as to whether mere implication in a case and registration of a First Information Report against a person, would be the only consideration and disentitle him to grant of bail? As an inherent part of the consideration of this issue, it becomes necessary to consider the parameters laid down by the Supreme Court for consideration of a prayer for bail and also the law where commission of offence under special enactments as the Unlawful Activities (Prevention) Act, 1967 are alleged.
26. Mr. M. A. Qayoom, learned counsel for the appellants has referred to several judicial pronouncements of the Supreme Court of India covering all aspects of the manner in which discretion must be exercised while considering an application for grant of bail.
CRA No. 37/2018 Page 9 of 3027. Reference on this issue first & foremost deserves to be made to the celebrated pronouncement of V.R. Krishna Iyer, J in (1978) 1 SCC 240, reported at AIR 1978 SC 429) GudikantiNarasimhulu v. Public Prosecutor, on the exercise of judicial discretion and grant of bail :
"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...."
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. xxxxxxx
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 CRA No. 37/2018 Page 10 of 30 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 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 CRA No. 37/2018 Page 11 of 30 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."
(Emphasis by us)
28. Also well known and oft cited is the judicial pronouncement of the Supreme Court reported at (1978) 1 SCC 118 Gurcharan Singh v. State (Delhi Admn.), wherein the Supreme Court had held as follows :
"24. Section 439(1) CrPC of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437(1) there is no ban imposed under Section 439(1), CrPC against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1)CrPC of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437(1) and Section 439(1) CrPC of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of CRA No. 37/2018 Page 12 of 30 repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out."
(Emphasis supplied)
29. In (1978) 1 SCC 579Babu Singh v. State of U.P. the Supreme Court opined as follows:-
"8. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden on the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. As Chamber Judge in this summit Court I had to deal with this uncanalised case-flow, ad hoc response to the docket being the flickering candle light.
So it is desirable that the subject is disposed of on basic principle, not improvised brevity draped as discretion. Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorise impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of "procedure established by law". The last four words of Article 21 are the life of that human right.
16. Thus the legal principle 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 the criminal record of a defendant, is therefore not an exercise in irrelevance.CRA No. 37/2018 Page 13 of 30
17. The significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Article 19. Indeed, the considerations I have set out as criteria are germane to the constitutional proposition I have deduced. Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bi-focal interests of justice--to the individual involved and society affected.
18. We must weigh the contrary factors to answer the test of reasonableness, subject to the need for securing the presence of the bail applicant. It makes sense to assume that a man on bail has a better chance to prepare or present his case than one remanded in custody. And if public justice is to be promoted, mechanical detention should be demoted. In the United States, which has a constitutional perspective close to ours, the function of bail is limited, "community roots" of the applicant are stressed and, after the Vera Foundation's Manhattan Bail Project, monetary suretyship is losing ground. The considerable public expense in keeping in custody where no danger of disappearance or disturbance can arise, is not a negligible consideration. Equally important is the deplorable condition, verging on the inhuman, of our sub-jails, that the unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible."
(Emphasis by us)
30. Learned counsel for the appellants has also relied before us the pronouncement of the Supreme Court in AIR 2017 SC 769 Manoranjana Sinh v. Central Bureau of Investigation, wherein the appellant was involved in a financial scam known as the 'Chit Fund Scam' effecting lakhs of depositors. Placing reliance on the above observations in Sanjay Chandra's case, the Supreme Court directed as follows:-
"18. In the above factual premise and on an in-depth balancing of all relevant aspects and chiefly the competitive imperatives of investigation and the right to liberty, we are disposed, for the present to grant bail to the appellant, subject CRA No. 37/2018 Page 14 of 30 to the conditions, as enumerated hereinafter. To reiterate, having regard to the materials available, we are of the opinion, mainly in the face of the disclosures in the latest status report, that presently further confinement of the appellant in judicial custody is not an indispensable necessity for the unhindered investigation, that is in progress."
31. We may note the conditions imposed by the Court in the above case while admitting the appellant to bail :
"19. In the above view of the matter, the appeal is allowed and the appellant is ordered to be released on bail in FIR RC- 04/S/2014-(SIT) Kolkata of Rs.1 (One) crore and on furnishing two local sureties each of the like amount to the satisfaction of the Additional Chief Judicial Magistrate Alipore, Kolkata, West Bengal and also subject to the following conditions :
1) The appellant would surrender her passport to the Trial Court.
2) She would not leave the territorial limits of the city Kolkata without the written permission of the Trial Court and without informing the investigating agency.
3) She would report before the Trial Court and the investigating officer once a month, till the investigation in the case is completed in full.
4) She would not in any way hinder or try to influence the investigation in any manner whatsoever and would not endeavor to either tamper with any evidence or induce/influence/dissuade/intimidate any witness or deal with any record relevant to the case.
5) She would cooperate with the investigation and would always be available to be interrogated by the Investigating Agency.
6) Any other condition as the Trial Court may consider to be appropriate if and as and when necessary.
7). We hereby clarify that breach or non-compliance of any of the above conditions would entail immediate cancellation of the bail granted, either suo-motu or on any complaint made by any quarter whatsoever.CRA No. 37/2018 Page 15 of 30
8). Apart therefrom, such a breach or non compliance would be viewed very seriously and would visit the appellant with stringent adverse consequences as contemplated in law. The Trial Court as well as the Investigating Agency are directed to keep continuous vigil in the matter so as to, if need be, bring to the notice of this Court any conduct or action of the appellant warranting recall of this order.
20. We make it clear that this order has been rendered in the singular facts of the case and would not be cited as a precedent."
(Emphasis by us)
32. Our attention has been drawn to the pronouncement reported at AIR 2012 SC 830 Sanjay Chandra v. Central Bureau of Investigation wherein the Court was concerned with the charge of cheating and dishonestly inducing delivery of property, forgery for the purposes of cheating,using as genuine a forged document amongst other offences. There were allegations relating to commission of offences under Sections 420-B, 468, 471, 109 of the Indian Penal Code and Section 13 of the Prevention of Corruption Act. The Supreme Court observed that the offences alleged were economic offences which resulted in loss to the State exchequer; that no material had been placed to show that there is a possibility of tempering with witnesses. It was categorically held that the seriousness of the charge was not the only relevant consideration for denial of bail. The Supreme Court has referred to the entire law on the issue including the judicial precedents noted by us. We may usefully extract para 14 of the pronouncement which has been placed before us, wherein the principles governing consideration of bail application have been authoritatively laid down which reads as under:-
"14) 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 CRA No. 37/2018 Page 16 of 30 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. 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. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson."
(Emphasis by us)
33. In(2018) 3 SCC 22Dataram Singh v. State of UP and Anr. the Supreme Court had noted that even if grant or refusal of bail is entirely the discretion of a Judge, such discretion must be exercised in a judicious manner and in a humane way observing as follows:
"2. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.
3. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity CRA No. 37/2018 Page 17 of 30 to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973."
4. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons.1 1 (2017) 10 SCC 658
6. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
(Emphasis by us) CRA No. 37/2018 Page 18 of 30 It is noteworthy that the Supreme Court has taken note of the fact that there was no apprehension that the appellant would abscond or would hamper trial. It was also noted that the appellant had no criminal antecedents.
34. In another recent pronouncement of the Supreme Court reported at (2018) 5 SCC 743 Pankaj Jain v. Union of India and Anr. and a complaint stood registered under several Sections of the Indian Penal Code and under 13-2 and 13-B of the Prevention of Corruption Act. Again reiterating that the discretion to grant bail has to be exercised judiciously and in a humane manner and compassionately, the Court had observed that "that by itself cannot be the ground to out rightly deny the benefit of bail if there are other overwhelming circumstances justifying grant of bail."
35. The above judgments lay down the parameters of judicial discretion and principles governing applications for bail, where applicants stand implicated for commission of offences under the Indian Penal Code or some other special enactments. In the present case, we are concerned with prayers for grant of bail made by two young sisters implicated for alleged commission of offence under the Unlawful Activities (Prevention) Act, 1967. Is there any distinction in consideration which has to be accorded?
36. Our attention has been drawn to the provisions of Section 43-D (5) of Unlawful Activities (Prevention) Act, 1967 by learned counsel which reads as follows :
"43-D. Modified application of certain provisions of the Code.
xx______ (5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapter IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the public prosecutor has been given an opportunity of being heard on the application of such release:"CRA No. 37/2018 Page 19 of 30
Provided that such accused person shall not be released on bail or on his own bond if the Court, on the perusal of a case diary or the report made under Section 173 of the Code is of the opinionthat there are reasonable grounds for believing that the accusation against such person is prima facie true."
(Emphasis by us)
37. It has been urged by Mr. M. A. Qayoom, that the above statutory provision is pari materia to Section 45 of the Prevention of Money Laundering Act, 2013 which reads as follows:
"45.Offences to be cognizable and non-bailable.-
(l)Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person who is under the age of sixteen years or is a woman or is sick or infirm, may be released on bail, if the special court so directs: Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by- (i) the Director; or (ii) any officer of the Central Government or State Government authorised in writing in this behalf by the Central Government by a general or a special order made in this behalf by that Government. (lA) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed. (2) The limitation on granting of bail specified in sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 CRA No. 37/2018 Page 20 of 30 (2 of 1974) or any other law for the time being in force on granting of bail."
(Emphasis by us)
38. Thus just as Section 43-D(5) of the Unlawful Activities (Prevention) Act, Section 45(1) of the Prevention of Money Laundering Act (15 of 2013) also contains twin conditions for grant of bail, the first being, grant of an opportunity to oppose the bail application to the public prosecutor. The second condition is the recording of the satisfaction by the Court as to the existence of reasonable grounds to believe that the accused was not guilty of the offence and that the accused was not likely to commit any offence while on bail.
We note a valuable exception contained in the proviso to Section 45 of the Act of 2013 so far as "a women" is concerned.
39. We find that a challenge laid to the constitutionality of the said provisions of the Prevention of Money Laundering Act, 2013 was decided by the Supreme Court in the judgment reported at 2017 SC 5500 Nikesh Tara chand Shah v. Union of India. In para 10 of the judgment, the Supreme Court held that the requirement of the statute was prejudicial to the doctrine of presumption of innocence of the accused; that there was absence of compelling state interest for tackling serious crime; that indiscriminate application of the provisions contained in the provisions of Section 45 violated articles 14 and 21 of the Constitution of India. The Supreme Court has cautioned the Courts against indiscriminate application of the prohibition contained in Section 45 (1) of the Prevention of Money Laundering Act, 2003. We may usefully extract hereunder the observations of the Court in para 10 and 38 of the said judgement which reads as follows:
"10. The provision for bail goes back to Magna Carta itself. Clause 39, which was, at that time, written in Latin, is translated as follows:CRA No. 37/2018 Page 21 of 30
"No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land." It is well known that Magna Carta, which was wrung out of King John by the barons on the 15th of June, 1215, was annulled by Pope Innocent III in August of that very year. King John died one year later, leaving the throne to his 9 year old son, Henry III. It is in the reign of this pious King and his son, Edward I, that Magna Carta was recognized by kingly authority. In fact, by the statutes of Westminster of 1275, King Edward I repeated the injunction contained in clause 39 of Magna Carta. However, when it came to the reign of the Stuarts, who believed that they were kings on earth as a matter of divine right, a struggle ensued between Parliament and King Charles I. This led to another great milestone in the history of England called the Petition of Right of 1628. Moved by the hostility to the Duke of Buckingham, the House of Commons denied King Charles I the means to conduct military operations abroad. The King was unwilling to give up his military ambition and resorted to the expedient of a forced loan to finance it. A number of those subject to the imposition declined to pay, and some were imprisoned; among them were those who became famous as "the Five Knights". Each of them sought a writ of habeas corpus to secure his release. One of the Knights, Sir Thomas Darnel, gave up the fight, but the other four fought on. The King's Bench, headed by the Chief Justice, made an order sending the knights back to prison. The Chief Justice's order was, in fact, a provisional refusal of bail. Parliament being displeased with this, invoked Magna Carta and the statutes of Westminster, and thus it came about that the Petition of Right was presented and adopted by the Lords and a reluctant King. Charles I reluctantly accepted this Petition of Right stating, "let right be done as is desired by the petition". Among other things, the Petition had prayed that no free man should be imprisoned or detained, except by authority of law xxx
38. We must not forget that Section 45 is a drastic provision which turns on its head the presumption of innocence which is fundamental to a person accused of any offence. Before application of a section which makes drastic inroads into the CRA No. 37/2018 Page 22 of 30 fundamental right of personal liberty guaranteed by Article 21 of the Constitution of India, we must be doubly sure that such provision furthers a compelling State interest for tackling serious crime. Absent any such compelling State interest, the indiscriminate application of the provisions of Section 45 will certainly violate Article 21 of the Constitution. Provisions akin to Section 45 have only been upheld on the ground that there is a compelling State interest in tackling crimes of an extremely heinous nature."
(Emphasis by us)
40. Placing reliance on the above pronouncements, Mr. Qayoom, would urge this court ought not to reject the prayer for bail of the appellants premised on the finding of the court in the order dated 31 st May, 2018 and the requirements under Section 43-D (5) of the Unlawful Activities (Prevention) Act, 1967.
41. It has further been pointed out to us that akin to the requirement under Section 43-D (5) of the Unlawful Activities (Prevention) Act, 1967, the Maharashtra Control of Organized Crime Act of 1999 contains section 21(4) which mandates satisfaction of the Court that there is reasonable ground to hold that the applicant is not guilty of the alleged offence and is not likely to commit offence if admitted to bail as conditions which are sine qua non for grant of bail. Apart from giving an opportunity to the prosecutor to oppose the application for such release, this statute contains a non obstante clause in sub-section (4) of Section 21 of MCOCA that the power to grant bail to a person accused of having committed an offence under the said Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973 but also subject to the restrictions placed by clauses (a) and (b) of sub-section (4) of Section 21.
CRA No. 37/2018 Page 23 of 3042. The manner in which the satisfaction contemplated in clauses (a) and (b) of sub-section 4 of Section 21 is to be accorded stands detailed in para 20 and 21 of the judgment in Nikesh Tara Chand, which reads as follows:-
"20) Though the High Court has adverted to all the above-
mentioned aspects and finding that all those aspects have to be considered during the trial and even after finding that "it cannot be said that there are no reasonable grounds for believing that the applicant (respondent herein) has not committed an offence punishable under the MCOCA", on an erroneous view, granted him bail which runs contrary to Section 21(4) of MCOCA.
21) While dealing with a special statute like MCOCA, having regard to the provisions contained in sub-section (4) of Section 21 of this Act, the Court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. Similarly, the Court will be required to record a finding as to the possibility of his committing a crime after grant of bail. What would further be necessary on the part of the Court is to see the culpability of the accused and his involvement in the commission of an organized crime either directly or indirectly. The Court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea. In view of the above, we also reiterate that when a prosecution is for offence(s) under a special statute and that statute contains specific provisions for dealing with matters arising there under, these provisions cannot be ignored while dealing with such an application. Since the respondent has been charged with offence under MCOCA, while dealing with his application for grant of bail, in addition to the broad principles to be applied in prosecution for the offences under the IPC, the relevant provision in the said statute, namely, sub-section (4) of Section 21 has to be kept in mind. It is also further made clear that a bare reading of the non obstante clause in sub-section (4) of Section 21 of MCOCA that the power to grant bail to a person accused of having committed offence under the said Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973 but also subject to the restrictions placed by clauses (a) and (b) of sub-section (4) of Section 21. Apart from giving an opportunity to the prosecutor to oppose the application for such release, the other twin conditions, viz., (i) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the CRA No. 37/2018 Page 24 of 30 alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. The satisfaction contemplated in clauses (a) and (b) of sub-section (4) of Section 21 regarding the accused being not guilty, has to be based on "reasonable grounds". Though the expression "reasonable grounds" has not been defined in the Act, it is presumed that it is something more than prima facie grounds. We reiterate that recording of satisfaction on both the aspects mentioned in clauses (a) and (b) of sub- section (4) of Section 21 is sine qua non for granting bail under MCOCA."
(Emphasis by us)
43. There can be no manner of doubt that so far as recording the satisfaction mandated by Section 43-D (5) of the Unlawful Activities (Prevention) Act, 1967while considering the prayer for grant of bail of the appellants, this Court has to be guided by the binding principles laid down by the Supreme Court in the above cited judicial precedents.
44. It is trite that so far as the consideration of an application for bail of multiple accused is concerned, the Court would be required to weigh the allegations and the evidence against each of the co-accused individually. It would be unfair and improper for the Court to accord an identical consideration to cases of co-accused against whom the investigating agencies make explicit allegations, refer to separate evidence and allege different roles and also place separate outcomes of their investigations including searches and seizures as well as oral statements of witnesses.
45. Mr. M.A.Qayoom, learned counsel for the appellant has submitted that this aspect has not been placed before the Court in the decision dated 31st May, 2018 of this Court. It would appear that no distinction between allegations against the appellants and the outcome of the investigation vis-à-vis the other three co-accused was placed before the Bench for consideration, in CRA no. 28/2018.
46. In the present case, so far as three of the accused namely, Syeda Asiya Andrabi, Nahida Nasreen and Sofi Fehmeeda are concerned, the investigating CRA No. 37/2018 Page 25 of 30 agencies have alleged that mobile phones and other objectionable incriminating material stand recovered from their possession. The investigating agency also relies on the outcome of the investigation into the records recovered from the three accused persons.
47. The above narration would show that there is no allegation of any recovery so far as the two appellants before us are concerned. No statements recorded by the Investigating Officer incriminating the two appellants have been pointed out by Mr. Bhat or placed before us.
48. Another material factor, in our view, would weigh in favour of these appellants is the fact that those who were arrested on 18th April, 2018 for pelting stones at the security forces, stand already admitted to bail and released from custody.
49. As noted by the Principal District Judge in the order dated 18 th May 2018 in the docket from the Officer Commanding 116th Bn. CRPF to the Police Post Anantnag, unidentified youth had gathered near the Shahi Bakery seeking justice for a victim of sexual violence and not against the State.
50. A dispute has been laid by Mr. Qayoom to the effect that these two appellants were not arrested from their residence, but, were arrested on 20th/21st April, 2018 from the residence of their maternal aunt.
51. It is noteworthy that the informant on whose instance the FIR stands registered, makes no reference to the presence of any women in the assembly. The appellants have pointed out that they have not been named by the informer resulting in registration of FIR or by any of the witnesses.
52. The above discussion shows that as per the status report and objections to the bail applications filed by the Investigating Officer, who is of the rank of Superintendent of Police, Anantnag, the appellants were not part of the mob which had indulged in the stone pelting. The appellants are not stated to be even present at the spot. No allegation of having caused any damage to public property has been made against these appellants.
CRA No. 37/2018 Page 26 of 3053. There is no material before us that the appellants have ever being implicated in any offence prior hitherto or even involved in any criminal activity before their implication in FIR No. 60/2018.
54. Both the appellants are sisters whose family is stated to be having deep roots in the community.
55. So far as the consideration of the possibility of their fleeing from justice if admitted to bail is concerned, the record shows that after the first order of bail dated 18th May, 2018 passed by the Principal Sessions Judge, Anantnag, the appellants were released from custody on bail till they were rearrested on 5 th June, 2018. During this period, they were aware of their implication in FIR No. 60/2018 as well as of the pending investigation. It is not the case of the prosecution that they made any effort to flee from justice, abscond or to interfere with the investigation or abuse the discretion exercised in their favour.
56. So far as the requirements of Section 43-D (5) is concerned, the Public Prosecutor was afforded full opportunity of having heard before the Principal Sessions Judge, Anantnag. We have also heard Mr. Asif Ahmad Bhat, learned Additional Advocate Genera at length and granted full opportunity to make submissions before us. The record stands produced before us.
57. It is also revealed from the record that, after the quashing of the bail order on 31st May 2018, the police searched the residence-cum-office of Asiya Andrabi on 3rd June 2018 and recovered incriminating material. No such allegation is made against the present appellants.
58. It is also noted in the impugned order dated 24 th July 2018, that these appellants were re-arrested on 5th June 2018, and remained on police remand till 13th June 2018. They are in judicial custody ever since. The appellants thus were available to the police for investigation. No case for custodial interrogation or their further retention in custody in the case has been made out by the prosecution.
CRA No. 37/2018 Page 27 of 3059. It is also significant to note that the FIR no. 60/2018 stands registered on 18th April 2018. Almost five and half months have passed. The challan under Section 173 of the Code of Criminal Procedure has yet to be filed against the appellants.
60. We are further informed that one of the two appellants is pursuing her M.A. Economics in Kashmir University.
61. We also notice that so far as these appellants are concerned, the status of the investigation as disclosed in the police reply in April/May 2018 and the reply filed in June 2018, remains the same.
62. There can be no dispute at all that so far as the investigation into allegations of commission of offence under the Unlawful Activities (Prevention) Act, 1967 is concerned, that there is compelling State interest in tackling such serious crimes. However, mere use of this statutory provision would not ipso facto warrant rejection of applications of bail ignoring the other binding requirement that the State must make out a prima facie case of commission of such offences premised on sound and fair investigations, to enable a court to draw its prima facie opinion that the applicant deserves to be kept under custody as he may have committed the offence with which he stands accused.
63. As noted above, so far as the two appellants are concerned, the bald allegations against them are non-specific and they have been clubbed together with the other three accused persons from whom the investigating agencies claim to have effected recovery of incriminating material.
So far as the allegations against the appellants are concerned, we find that allegations have been made which are general and not specific, bald and over- arching.
64. We had therefore expressly queried Mr. Asif Ahmad Bhat, learned Additional Advocate General as to availability of incriminating circumstances so far as the appellants were concerned. It was for this reason we had summoned the record of the case. Mr. Bhat is unable to point out such specific CRA No. 37/2018 Page 28 of 30 material against the present appellants in the investigation conducted so far. Prima facie, so far the investigating agencies do not appear to have so far collected material to draw a connection of these appellants to the allegations & activities of the other three co-accused.
65. In our view, on application of binding principles laid down by the Supreme Court of India in plethora of judgments including those noted by us hereinabove.
66. In the order dated 31st May 2018 in CRA No. 28/2018, the Division Bench has concluded that the allegations made by the prosecution would constitute commission of offences under the Unlawful Activities (Prevention) Act, 1967. However, as noted above, so far as the appellants are concerned, prima facie, it would appear that the prosecution has not been able to support the same with any material during investigation as is evident from the record placed by the learned AAG. No report has been made under Section 173 of the Code so far. In this background, there is no material for this Court to conclude that there are reasonable grounds in believing that the accusations made by the prosecution against the present appellants are prima facie true.
67. In view of the above discussion, we direct as follows:-
(i) The impugned order dated 24th July 2018 passed by the Principal Sessions Judge, Anantnag is hereby set-aside and quashed.
(ii) Subject to the appellants furnishing bail bonds in the sum of Rs.
50,000/- with one surety each in the like amount to the satisfaction of the Chief Judicial Magistrate, Anantnag, the appellants shall be released on bail in the present case.
(iii) The appellants shall cooperate with the investigating agency and remain present before the Investigating Officer as and when required.
(iv) The appellants would not in any way try to hinder or influence the investigation in any manner whatsoever and shall not tamper with CRA No. 37/2018 Page 29 of 30 any evidence or induce/influence/dissuade/intimidate any witness or deal with any record relevant to the case.
(v) The appellants would not leave the State of Jammu and Kashmir without prior permission of the learned Principal Sessions Judge, Anantnag as well as without written information to the investigating agency.
(vi) The appellants shall not indulge in any criminal activity of any kind.
(vii) Breach or non-compliance of any of the conditions would entail immediate cancellation of the bail granted in accordance with law.
68. The appeal is allowed in the above terms.
(ALOK ARADHE) (GITA MITTAL)
JUDGE CHIEF JUSTICE
Srinagar.
04.10.2018.
Altaf.
CRA No. 37/2018 Page 30 of 30