Jammu & Kashmir High Court - Srinagar Bench
Mehraj Ud Din Ahanger vs . on 5 April, 2019
Author: Rashid Ali Dar
Bench: Rashid Ali Dar
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HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
B.A. No. 158/2018
c/w
B.A. No. 24/2019
Date of Decision: 05.04.2019
Mehraj ud din Ahanger
Vs.
State of J&K
Coram:
Hon'ble Mr. Justice Rashid Ali Dar, Judge.
Appearing Counsel:
For Petitioner(s): Mr. F.A.Wani , Advocate with Mr. Wajid Haseeb Advocate.
For Respondent(s): Mr. Javaid Iqbal, Sr.AAG.
i) Whether approved for reporting in Law journals etc.: Yes
ii) Whether approved for publication in press: Yes / No
1. Petitioner herein has invoked jurisdiction of this Court under Section 498 Cr.PC for admission to bail in FIR No. 52/2018, Police Station Pantha-Chowk, Srinagar, while putting forth that the petitioner herein- accused was arrested on 29.06.2018 without any justification or cause and thereafter was falsely implicated in the case for commission of offences under Sections 363, 506, 376 RPC. The petitioner had applied for bail before learned 2nd Additional Sessions Judge, Srinagar, however, the said court rejected the bail vide order dated 09.10.2018.
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2. The petitioner had annexed with the petition copies of a) FIR No. 52/2018, P/s Pantha chowk, Srinagar, b) statement of prosecutrix recorded under Section 161/164-A Cr.PC, c) medical examination reports and, d) final report(challan), etc.
3. While the B.A.No. 158/2018 was being heard, it was brought to the notice of the Court that the petitioner herein had filed another petition(B.A.No.24/2019) for grant of same relief with an additional prayer for setting aside the order dated 09.10.2019 passed by learned trial court which had rejected the bail application.
1. Mr. Wajid, learned counsel appearing on behalf of the petitioner in Bail Application No.158/2018 submitted that there is no allegation levelled against the petitioner for alleged rape against the prosecutrix and so the learned trial court which had rejected the bail application was not right in doing so. It is also his submission that the allegations levelled against the petitioner are improbable and from the allegations which have been put-forth by the Investigating agency there was no scope for charging the petitioner-accused with the commission of offence under Section 376 Cr.PC and consequent dismissal of the bail application by the court of learned 2nd Additional Sessions Judge, Srinagar, on the analogy that Section 497-C Cr.PC creates bar for Page |3 grant of same, was unwarranted. He has also made reference of the order of bail passed by the learned Judicial Magistrate 1st class, Judge Small Causes, Srinagar on 23.07.2018 in the same FIR at the time when the allegations were restricted to the commission of offences under Sections 363, 506 RPC. Furthermore, according to him, the statement of prosecutrix is highly improbable and it cannot be believed that the alleged prosecutrix can be taken by the accused- petitioner herein to such a distant place in the manner in which the first informant and alleged prosecutrix refers in their statements.
4. Mr. Wani, learned counsel for the petitioner in B.A.No. 24/2019, while being asked as to how second petition was moved, submitted that since the prayer had been made for setting aside the order, so filing of the petition is to be appreciated in that background. He has also submitted that there was no material available with the trial court to opine that the petitioner herein having committed offence under Section 376 Cr.PC and so required to be set aside.
5. Mr. Javaid Iqbal, learned Sr.AAG has questioned the legality of filing two petitions on the same subject and even not making a murmur in the second petition about filing of first petition. It is his submission that since the order passed by the learned trial court rejecting the Page |4 application was interlocutory and so the revision would not lie against the said order. In this background, he has taken reliance on the judgment reported in 2012(1) JKJ 65 (HC) titled Ghulam Mohi ud din Bhat Vs. State & Ors. The Court in the said judgment has observed as:-
"The Supreme Court did not repel or reject the argument that the order granting bail was an "interlocutory order" not amenable to revisional jurisdiction. The case law relief upon by Mr. Lone, thus, extends support to the stand taken by Mr.Shah that the order granting or refusing bail is an "interlocutory order" and revision is not maintainable being expressly barred by Section 435(4-a) of the Code. However, this does not end the matter inasmuch as the petitioner though styling the petition as Criminal Revision has made a specific prayer in the body, of that the petition that it, in alternative may be treated counsel as one under Section 561-A Cr.PC."
6. It is also being submitted that even the second petition is not maintainable as there is no change in circumstances and the learned trial court which had rejected the bail application was alive to the fact that the statement of prosecutrix was recorded and so on the basis of material before it, was of the view that it would not be proper to grant relief claimed unless there is change in circumstances that would overshadow the relevance of the statement of the alleged prosecutrix.
Page |5 There can be no ground available for re-visiting the opinion framed by the learned trial court.
7. One more ground urged by the learned Sr.AAG is that the learned trial court was required to be again approached if there would have been change in circumstances to consider the bail petition and the petitioner cannot directly invoke the jurisdiction of this Court as has been observed in the judgment of this Court in Mian Abdul Qayoom Vs. State of J&K and Others reported in 2011(1) JKJ 500(HC), wherein the Court has enunciated that:-
"...Petitioner has remedy in terms of Section 497 Cr.PC to seek bail by laying motion before the Court of first instance. The Apex Court in case tilted Gurcharan Singh and others v. State(Delhi Administration) reported in (1978)1 SCC 118 observed that it is proper to exhaust first remedy. No doubt the remedy in terms of Section 498 Cr.PC can be availed but it would amount to depriving the party a forum against whom the order would be passed by the court first instance. In this backdrop, it is proper to direct petitioner to approach the Court of first instance."
8. Considered the rival arguments.
9. The presentation of the 2nd petition on behalf of the accused (referred in the case) before this Court appears not only improper but also unethical. Prima facie being the officers of the Court learned Page |6 Advocates are always expected to represent a case of the party without making concealment of the facts. They are supposed to apprise the Court about the status of a case if already pending. This has to be done to ward off the propensity of passing of contrary orders. Impropriety may not be attributed to a party alone but to the counsel also, if not explained. The Power of Attorney in both the cases presented for grant of bail has been signed by the father of the accused-petitioner herein and so far it is not explained satisfactorily as to why second petition was filed.
10. A Single Bench of Kerala High Court in State of Kerala Vs. Vishnu 2006(1) KLT 445, had already dealt with the similar state of affairs. Direction has been given by said Bench that authorization for filing bail petitions should be from a person(s), who is/are in custody. Further directions/observations are :-
"34. Though I am not cancelling the pre-arrest bail granted to the respondent, I am of the view that certain directions are to be issued to prevent such incidents in future. This Court and the criminal Courts shall follow the following matters while filing the criminal proceedings:
(i) Every pleader appearing for the accused or complainant shall file a memorandum of appearance containing a declaration specified in Rule 31 of the Criminal Rules of Practice. If the pleader is instructed Page |7 by any person other than the accused, his name and address shall be stated in the memo itself. If the pleader is appearing for more than one accused/complainant, such details in respect of all accused/complainants shall be stated in the memo. If necessary, the pleader may file separate memo of appearance for each person. The words which are not necessary shall be scored off.
(ii) If proceedings are filed for and on behalf of person under custody and upon the instruction by a person who claims to represent the person under custody the application shall be accompanied by an affidavit. The deponent shall state that he has been authorised by the applicant/applicants to file the application or proceedings and the applicant/ applicants has/have not filed any similar petition for the same relief either before that Court or any other Court and the same is pending.
He should also state that during the pendency of that application or proceedings no application for same relief shall be filed either before that Court or any other Court.
(iii) The Registry of this Court as well as the offices of the lower Courts shall at the time of filing of proceedings insist that every application or proceedings filed by a person who is not under custody shall be accompanied by an affidavit sworn to by that person himself. In case there are more than one applicant, each one of them shall file separate affidavits or a joint affidavit sworn to by all persons together in accordance with law.
(iv) The affidavit/affidavits filed shall be in proper form and attested as provided under Rules 37 to 46 of the Criminal Rules of Practice. The affidavit/affidavits shall contain an averment to the effect that the application is filed as per his/their own instructions.
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(v) If the petitioner is under legal disability or prevented by sufficient cause, the person who instructs the pleader shall file an application for leave supported by an affidavit as stated in Clauses (iii) and (iv) above...."
11. May be it so, if it is assumed that the father of the accused- petitioner herein was interested in the welfare of the arrestee and was keen for restoration of his liberty, the conduct referred above, in filing the second bail petition without making the Court known of pendency of earlier petition, appears prima facie contumacious as it tends to pollute the course of justice.
12. A Bench of this Court has also earlier passed certain directions to attain the salutary object behind the principle noted supra.
13. Viewing the matter in above backdrop, it is directed that:-
The signatory of the Power of Attorney in Bail Petition No. 24/2019 be put on notice to explain as to how the said petition was filed during the currence of earlier bail petition and why he be not proceeded for polluting the course of justice.
14. In order to ensure that there is no recurrence of such practice, Registry shall entertain the case(s) only after the party/parties concerned files/file an affidavit stating therein that no such proceeding (other than intended to be commenced) is/are pending or has/have been disposed of by the Court and in Page |9 case there is/are some case(s) pending, particulars of same shall be asked to be mentioned therein.
Similarly, if the proceedings are filed for and on behalf of a person who is in custody or has some disability, the person claiming to represent said person (in custody/disability) shall submit an affidavit accompanying the said petition. The deponent shall state that he has been authorized by the applicant/applicants to file the application or proceedings and the applicant/ applicants has/have not filed any similar petition for the same relief either before that Court or any other Court and same is pending. He should also give the particulars and necessary details of a case if already filed and disposed of for same or similar relief.
The direction shall be applicable viz. the cases filed in District courts also.
15. Reverting back to the instant case and taking contentions raised for examination, it needs to be underlined that the order passed in the bail application being not final order, resultantly same cannot be subjected to challenge under the revisory jurisdiction P a g e | 10 ordinarily unless the party challenging the same satisfies the court that a case is made out for exercise of supervisory or inherent jurisdiction. Having noted so, I am of the opinion that the Bail Petition No. 24/2019 cannot be permitted to be made base for reversing the order passed on 09.10.2018 by the learned 2nd Additional Sessions Judge, Srinagar.
16. The case as put-forth in terms of the Bail petition No. 158/2018 filed under Section 498 Cr.PC is that the Investigating Agency has in the final report, submitted before the learned Magistrate under Section 173 Cr.PC, framed an opinion that the accused-petitioner herein has committed offence under Sections 363, 376, 506 RPC. The substance of the accusations as recited therein makes a mention of assertions made by the father of the alleged prosecutrix in terms of the Annexure-P1 to the petition(FIR), which has merged in registration of FIR No.52/2018, referred above.
17. The first part of the allegations referred in FIR supra is that the alleged prosecutrix is minor and she has been lured by the petitioner herein and taken to the forest. She was able to save herself miraculously. She had been threatened to be kidnapped. In the statement recorded under Section 164-A Cr.PC it is being stated that P a g e | 11 her mouth was gagged and was forcibly taken away to some place by a person namely 'Sahil', wherefrom she was able to save herself and reported back to her residence. The assertion of the father of the alleged prosecutrix had been on the same lines while it being also explained that the alleged prosecutrix returned to her residence at about 8.00 in the evening. The name of the person who had kidnapped is again given as 'Sahil'.
18. In the deposition of alleged victim before the court recorded on 27.09.2018 (i.e. prior to the rejection of the bail petition) it is stated that she was playing „hide and seek‟ with her cousins in the courtyard and her eyes were shut and later she found herself at the place where her clothes were soil stained. There is nothing in the statement wherefrom the petitioner herein having committed sexual assault on the alleged prosecutrix, can be inferred. Learned trial court while rejecting the bail application has not stated in the order so passed that it has prima facie found basis to infer that the 'sexual intercourse' having been committed by the petitioner herein with the alleged prosecutrix or she having been subjected to any act, finding reference in the amended provision relating to rape. It has rejected the bail P a g e | 12 petition while observing that the alleged prosecutrix is minor whose consent is immaterial and the said offence is against the society.
19. The power of the High Court under Section 498 Cr.PC to entertain bail petition is plenary. In Emperor Vs. H.L.Hutchinson, AIR 1931 AII 356(Meerut Conspiracy Case) there lordships have observed that same is unfettered and is not controlled by any condition. It has not been restricted by the provision in terms of which it is granted. It would be proper to quote herein Section 498 Cr.PC:-
"498. Power to direct admission to bail or reduction of bail.
.................the High Court or Court of Session may, in any case, whether there be an appeal on conviction or not, direct that any person be admitted to bail, or that the bail required by a police officer or Magistrate be reduced..........."
20. The power is discretionary in nature and is expected to be used judiciously. The question, thus, to be considered at the very prelude is as to whether the petitioner herein could have filed the petition for grant of bail in this Court after the prayer was declined by the court of learned 2nd Additional Sessions Judge, Srinagar. On perusal of the order dated 09.10.2018 passed by the learned 2nd Additional Sessions Judge, Srinagar, it is clear that the petitioner herein had taken similar plea before the said court of being innocent P a g e | 13 and having not subjected the prosecutrix to sexual aggression, coupled with the fact that there is no indication of the said offence in her statement recorded under Section 164-A Cr.PC after she had alleged the petitioner herein to have committed the same.
21. Having regard to the nature of the power vested in the High Court, I am of the opinion that mere decline of learned trial court to grant bail would not come in the way of this Court in exercising this power. It is not being denied herein that the petitioner has been held prima facie guilty for commission of offence under Section 376, 506 RPC on 12.09.2018 and thereafter the prosecution has been asked to lead evidence. Till 21.01.2019 only one witness i.e. alleged prosecutrix has been examined whose deposition finds reference in the order of the bail passed by the court of learned Sessions Judge.
22. The impact of the statutory bar created under Section 497-C Cr.PC for grant of bail has to be considered while having in view fundamental concept of criminal jurisprudence and which has not been substituted. The prosecution is required to prove the guilt of the accused beyond reasonable doubt. An accused in a criminal case is to be presumed innocent till his guilt is proved at trial and this settled P a g e | 14 principle of criminal jurisprudence cannot be said to have overshadowed by the enactment of Section 497-C of Cr.PC.
23. In various statutes, bar has been created for grant of bail, entitlement to which is to be ordinarily considered in terms of Section 497/498 Cr.PC. Principle has been framed to consider the plea of bail while providing an opportunity to oppose bail to the Public Prosecutor and recording reasons that there are reasonable grounds to believe the accused is not guilty or reasonable grounds to believe the accusations against such person are prima facie true, the accused shall not be released on bail. The scope for recording reasons and framing opinion in negative, in the instant case, is thus, to be seen in the above backdrop. It cannot be ignored that personal liberty of the accused is sacrosanct and has to suffer eclipse only in terms of the procedure established by law.
24. Article-21 of the Constitution of India deals with nothing less sacrosanct than the rights of life and personal liberty of the citizens of India and other persons. It is this only Article in the Fundamental Rights Chapter(Part III), which cannot be suspended even in emergency. The said Article has been interpreted liberally in Maneka Gandhi's case (Maneka Gandhi v. Union of India (1978) 1 SCC 248 P a g e | 15 (AIR 1978 SC 597), and so no person is to be deprived of his life and personal liberty except according to fair, just and reasonable procedure established by law. The concept of reasonableness runs like a golden thread through the entire fabric of the Constitution and it is not enough for the law to provide some semblance of a procedure. The conditions laid down in terms of Section 497-C of Cr.PC certainly makes drastic inroads into the fundamental right of liberty. The object behind the enactment of same is certainly to curb the recurrence of offences of rape. The principle so laid under the provision cannot be pushed so far to divest the court of power to examine the merit of an individual case. A criminal court appears to be under an obligation to see whether material on record ex-facie indicates probability of innocence of accused. If to a reasonable extent probability swing in favour of the accused the court cannot shut its eyes and wait the conclusion of trial. A fine balance thus, is to be drawn between presumption of innocence available under criminal jurisprudence and the rider placed by Section 497-C of Cr.PC. The interpretation of Section 497-C of Cr.PC is to be made thus, without making the concept of innocence totally redundant.
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25. It is indeed difficult to find when and whether a preposition put- forth on behalf of the accused for extenuation of the bar placed under Section 497-C of Cr.PC deserves to be accepted but same in my opinion has to be left to the discretion of the trial Judges who have experience of dealing with such cases and which experience they attained at Bar or Bench or at both. Care has, thus, to be taken while applying bar under Section 497 Cr.PC that genuine and weightly contention raised on behalf of the accused do not escape the desired attention of the court on an assumption that bar created in terms of Section 497-C of Cr.PC is unbridled. No straitjacket formula can be thus, laid down for exercise of discretion in the cases where exception for applicability under Section 497 Cr.PC, is made out.
26. In the instant case, the statement of alleged prosecutrix its face value does not point out sexual aggression having been made by the petitioner herein. Nonetheless he had been held prima facie guilty of the commission of offence referred above, same in my opinion warrants exercise of power by this Court under Section 498 Cr.PC for grant of bail, pending trial. The observations so made herein shall not be treated, however, to be any opinion on the merits of the case, which the prosecution has projected against the accused-petitioner P a g e | 17 herein before the learned trial court. The prosecution would be at liberty to take all such necessary steps, as may be deemed proper under law to prove guilt of the accused. Accordingly, it is deemed expedient in the ends of justice to admit the petitioner herein to bail subject to furnishing bail bond by two sureties in the amount of Rs.50,000/-, to the satisfaction of learned trial Judge, conditioned that the petitioner herein:-
a) shall appear in person before the trial court on each and every date of hearing;
b) shall not leave the territory of the Valley without prior permission of the trial court;
c) shall not tamper with the prosecution evidence;
and,
d) shall not change his place of residence until permitted by the trial court.
27. Trial court is kept at liberty to pass appropriate orders hereinafter for regulating the conduct of accused for ensuring his presence at trial and the trial being conducted in a fair manner.
28. Rule as directed above be framed against the person, who had filed 2nd petition on same relief.
29. Disposed of, as indicated above.
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30. A copy of this order be circulated among the concerned to ensure observance of the direction referred above at Para 14.
( Rashid Ali Dar ) Judge Srinagar 05.04.2019 Muzammil. Q MUZAMIL QADIR 2019.04.09 10:40 I attest to the accuracy and integrity of this document