Ashwani Choudhary S/O Ramesh Chander ... vs Ut Of Jammu & Kashmir Through Sho Police on 17 April, 2023

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Jammu & Kashmir High Court

Ashwani Choudhary S/O Ramesh Chander ... vs Ut Of Jammu & Kashmir Through Sho Police on 17 April, 2023

1. Petitioner/accused arrested on 15-04-2014 in case FIR No. 66/2014 registered with Police Station R.S. Pura Jammu for commission of offences punishable u/ss 302/460/148/149/120-B, 427 RPC r/w 4/25 Arms Act and presently lying in judicial custody in Central Jail Kot Bhalwal Jammu has claimed bail on the grounds, that statements of all the important witnesses have been recorded and only formal witnesses are left; that on the basis of the evidence recorded so far, it clearly shows that offences indicted against petitioner/accused have not been made out and he has been un-necessarily dragged in the criminal challan; that the trial court is likely to take considerable time to conclude the trial which would be infringement of fundamental right of the accused of speedy trial; that the material witness No.3 Soma Devi wd/o deceased shown as eyewitness by the prosecution during her statement recorded in the trial court has out rightly denied the presence of petitioner/accused at the time of alleged incident and even she has not been declared hostile by the prosecution; that out of total 53 witnesses listed in the challan, only 7 have been examined by the prosecution for the last more than 8 years & 6 months, whereas, the petitioner/accused is lying in incarceration in jail for the last more than 8 years; that the trial court has rejected the bail on 11-04-2022 without appreciating the dictum of law that "bail is rule" and "jail is exception"; that petitioner/accused was 18 years of age at the time of the occurrence and was student whose bright carrier has been marred due to his 2 Bail App No. 374/2022 false implication in the case; that the petitioner/accused undertakes to abide by all the conditions imposed by the court and will appear in the trial court on each and every date of hearing.

2. Respondent has opposed the bail on the grounds, that petitioner/accused cannot claim bail as a matter of right as he is involved in heinous offence and there is every likelihood that petitioner/accused if enlarged on bail would flee from justice. It is contended, that release of petitioner/accused on bail would affect the fair trial of the case, as his liberty is subservient to the interest of public at large, petitioner/accused is involved in gruesome murder of one Suresh Kumar. Prayer has been made for rejection of bail application.

3. Mr. Ranjeet Kumar Ld. Counsel for petitioner/accused has reiterated the grounds urged in the memo of bail application and has sought the enlargement of petitioner/accused on bail by canvassing arguments, that for the last more than 8 years petitioner/accused is languishing in jail in false and frivolous case for his no fault, till date out of 53 prosecution witnesses only 7 have been recorded out of which one eyewitness namely Soma Devi Wd/O deceased Suresh Kumar has deposed nothing against petitioner/accused and has ruled out his presence on the scene of crime, keeping of petitioner/accused in further incarceration for indefinite period of time would amount to denial of speedy justice to him violating his fundamental right. It is argued, that the fundamental principle of criminal jurisprudence is that bail is rule and jail is an exception which fully applies to the case in hand, as for the last more than 8 years, only 7 witnesses have been recorded by the prosecution, petitioner/accused is presumed to be innocent till guilt is proved against him, therefore, he claims bail as a matter of right.

4. Mr. Pawan Dev Singh Ld. Dy. AG for respondent, per-contra, has strenuously opposed the bail by articulating arguments, that out of total 53 witnesses 7 witnesses are eyewitnesses to the occurrence out of which only 3 have been examined and although PW-3 Soma Devi Wd/o deceased has denied the presence of petitioner/accused on the scene of crime, the other examined eyewitnesses have not turned hostile, moreso, the other eyewitness are yet to be examined, and at this stage it cannot be legally inferred that there is no evidence against petitioner/accused. It is argued, that for complete 2 years due to Covid-19 restrictions the trial got hampered before the trial court, therefore, no oblique motives can be attributed to the prosecution regarding the delay. It is vehemently argued, that by the dictum of various 3 Bail App No. 374/2022 judgments of High Courts and Supreme Court of India, it has been clearly laid down that at the stage of granting of bail in non-bailable offence, the court can go only into question of prima-facie case established for granting bail, it cannot go into the credibility and reliability of the witnesses put up by the prosecution, in offences of serious nature like murder cases where an accused is enlarged on bail there is every possibility that he may influence the witnesses as he is facing trial in an offence punishable with death or imprisonment for life, the nature and gravity of offence and its impact on the society is also to be considered in the case in hand, moreso, number of remaining eyewitness are yet to be examined and there is every possibility of them being threatened/win over by the accused if enlarged on bail.

5. I have heard Ld. Counsel for petitioner/accused and Ld. Dy. AG for respondent. I have gone through the evidence so far recorded by the trial court, and have also thoroughly scanned the ratios of the judgments on the subject matter.

6. Hon'ble Supreme Court in a case law titled Kalyan Chandra Sarkar V. Rajesh Rajan @ Pappu Yadav and Anr. (2004) 7 SCC 528 while succinctly laying down broader principles for grant or refusal of bail in non- bailable offence in para 11 of the judgment observed as under:-

"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

c) Prima facie satisfaction of the court in support of the charge"

7. Applying the principles of law enunciated in Kalyan Chandra Sarkar's case (Supra) to the facts of the case in hand, Hon'ble Supreme Court in a case law titled Brijmani Devi Versus Pappu Kumar & Anr. (2021 Legal Eagle

928) rejected the bail of accused indicted for commission of offence of murder u/s 302/34 IPC on the ground that High Court lost sight of vital aspect of the case and passed very cryptic order granting bail to the accused.

4 Bail App No. 374/2022

In 2021 Legal Eagle 407 [Sunny Choudhary Versus State of J&K], a Coordinate Bench of this Court while rejecting the bail to the accused indicted for commission of offences punishable under sections 302/460/148/149/427/120-B/109 RPC and observing that at the stage of granting bail during trial detailed examination of evidence and merits of the case are not to be considered and moreso the court cannot go into the question of credibility and reliability of the witnesses, in paras 10 &11 of the judgment held as under:-

10. The law is well settled that the court should refrain from appreciating the evidence, while considering the bail application. Further the Apex Court in Satish Jaggi v. State of Chhattisgarh, reported in (2007) 11 SCC 195 has held as under:

"12. Normally if the offence is non-bailable also, bail can be granted if the facts and circumstances so demand. We have already observed that in granting bail in non-bailable offence, the primary consideration is the gravity and the nature of the offence. A reading of the order of the learned Chief Justice shows that the nature and the gravity of the offence and its impact on the democratic fabric of the society was not at all considered. We are more concerned with the observations and findings recorded by the learned Chief Justice on the credibility and the evidential value of the witnesses at the stage of granting bail. By making such observations and findings, the learned Chief Justice has virtually acquitted the accused of all the criminal charges leveled against him even before the trial. The trial is in progress and if such findings are allowed to stand it would seriously prejudice the prosecution case. At the stage of granting of bail, the court can only go into the question of the prima facie case established for granting bail. It cannot go into the question of credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial.

13. In the present case, the findings recorded by the learned Chief Justice, as referred to above, virtually amount to the regular trial pointing out the deficiency and reliability/credibility of the prosecution evidence. Such findings recorded at the stage of consideration of bail, in our view, cannot be allowed to sustain."

11. There are serious allegations against the petitioner of hatching a conspiracy for committing murder and arranging the killers in pursuance of the said conspiracy, At this stage, it cannot be determined that the allegations are either false or not true as number of other witnesses are yet to be examined and there is every chance that if the petitioner is enlarged on bail, he may influence the witnesses as the petitioner is facing trial for commission of offence, which is punishable with death or imprisonment to life. So far as delay in the conclusion of trial is concerned, perusal of record shows that the trial court has conducted the effective proceedings and even to secure the presence of the complainant-PW-1, trial court has resorted to 5 Bail App No. 374/2022 even coercive process. It requires to be noted that for the last two years, the courts have been functioning in restricted node and obviously some delay has caused due to Covid-19 pandemic in conducting the trial of the case.

In 2021 Legal Eagle 551 [Mohammad Ibrahim Dar Versus Union Territory of Jammu & Kashmir] a Coordinate Bench this Court again while rejecting bail to the accused facing trial in offence punishable under Section 302 RPC and observing that court should not render any finding regarding the credibility and evidentiary value of the witnesses at the stage of considering application for grant of bail, in paras 13,14,15 & 16 held as under:-

13. When the application in hand is taken for consideration, it contains the statements of witnesses, which, according to counsel for applicant, have been reproduced so that this Court would appreciate the same while considering the application for bail. It is made clear here that the nature and gravity of the offence and its impact on the democratic fabric of the society is to be considered and there should not be observations and findings on the credibility and the evidential value of the witnesses at the stage of considering application for grant of bail. In the event any observation and finding are made about the statements of witnesses, reproduced by applicant in the application in hand, same would virtually amount to discussing the whole case, which is subject- matter of final stage of the trial.

14. Since in the present case, the trial is in progress and if any finding or view is made by this Court while taking into account the statements of the witnesses or for that matter any finding on their credibility and evidential value at the stage of granting or refusing bail, it would seriously prejudice Bail App no.95/2020 the prosecution case. The allegations against accused are serious and same cannot be determined that the allegations leveled against accused are either false or true as a number of other witnesses are yet to be examined and there is every chance that if applicant is enlarged on bail, he may influence the witnesses as he is facing trial for commission of offence, which is punishable with death or imprisonment for life. Reference in this regard is made to Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav and anr., (2004) 7 SCC 528; State of U.P. through CBI vs. Amarmani Tripathi, (2005) 8 SCC 21; Prahlad Singh Bhati vs. NCT, Delhi and anr, (2001) 4 SCC 280; Ram Govind Upadhyay vs. Sudarshan Singh and ors., (2002) 3 SCC 598; State of Maharashtra vs. Ritesh, (2001) 4 SCC 224; Panchanan Mishra vs. Digambar Mishra and ors., (2005) 3 SCC 143; Vijay Kumar vs. Narendrea and ors, (2002) 9 SCC 364; Anwari Begum vs. Sher Mohammad and anr., (2005) 7 SCC 326; Prasanta Kumar Sarkar vs. Ashish Chatterjee and ors., (2010) 14 SCC 496; and Ravindersingh vs. State of Gujarat (2013) 12 SCC

446.

15. In the above backdrop, the judgments relied upon by learned counsel for applicant do not render any help to the case of applicant as being distinguishable in facts and circumstances of the present 6 Bail App No. 374/2022 case. Resultantly, order impugned does not warrant any interference.

16. For the foregoing reasons, this is not a fit case for grant of bail. Bail application/petition along with connected CM(s) is, accordingly, dismissed.

In 2022 Legal Eagle 1042 [Nitu Kumar Versus Gulveer & Anr.] Hon'ble Supreme Court of India while cancelling bail granted to an accused punishable u/s 302 IPC and observing that gravity and seriousness of the offence is a relevant consideration for grant of bail in paras 2.2 &3 held as under:-

2.2 From the aforesaid it can be seen that nothing has been discussed by the High Court on the role attributed to respondent No. 1 accused and his overt act in commission of the offence. The High Court has not appreciated that there is an eye witness, who has categorically stated that respondent No. 1 caught hold of the deceased. The High Court ought to have appreciated that if respondent No. 1 would not have caught hold of the deceased it would not have been possible for the co accused Shekhar to cause injuries on the deceased. Therefore, the High Court ought to have appreciated that the role attributed to respondent No. 1 can be said to be very serious like co-accused Shekhar. As per the settled position of law, gravity and seriousness of the offence is a relevant consideration for the purpose of grant of bail. The High Court was required to consider the gravity and the seriousness of the offence and the nature of the allegations against respondent No. 1 accused. Under the circumstances, the impugned judgment and order passed by the High Court releasing respondent No. 1 on bail for the offence punishable under Section 302 of IPC is unsustainable.

3. In view of the above and for the reasons stated above, the present appeal succeeds. The impugned judgment and order passed by the High Court releasing respondent No. 1 accused on bail in Case Crime No. 80/2021 of Police Station Rohata, District Meerut for the offence punishable under Section 302 IPC is hereby quashed and set aside.

8. Ratios of the judgments (Supra) lay down an invariable principle of law, "that when the trial of a case is in progress, gravity and seriousness of offence is relevant factor and when number of material witnesses are yet to be examined and if any finding or view is made by the court while taking into account statements of witnesses or for that matter any finding on their credibility and evidentiary value at the stage of granting or refusing bail, it would seriously prejudice the prosecution case". Ratios of the judgments (Supra) squarely apply to the facts of the case in hand and the arguments propounded by Ld. Counsel for respondent. The gravamen of the prosecution allegations against petitioner/accused are, that on 19-03-2014 in the evening time petitioner/accused alongwith co-accused 1. Tarseem Lal, 2. Subhash Chander, 7 Bail App No. 374/2022

3. Chaman Lal, 4. Janak Raj, 5. Sunil Kumar, 6. Rakesh Kumar, 7. Sikander Lal, 8. Mohinder Lal, 9. Pintu Kumar, 10. Yash Pal, 11. Ajay Kumar, 12.

Gulshan Kumar, 13. Balbir Singh, 14. Suneet Choudhary, & 15. Pankaj Sharma for a land dispute with victim party, with their criminal common intention to achieve the common object to kill, attacked victim Suresh Kumar with sharp edged weapons viz; Tokas, Talwars, etc., who suffered grievous injuries, was referred to CHC R.S. Pura, from where he was referred to GMC Jammu but was declared brought dead.

9. From the record, it appears that the trial court of 1 st Addl. Sessions Judge Jammu vide it's order dated 11.04.2022 dismissed the bail application of petitioner/accused. Out of total 53 prosecution witnesses, till date, as many as 7 witnesses have been recorded, out of which 3 are eyewitnesses. PW-3 Soma Devi Wd/o deceased Suresh Kumar although has not deposed anything regarding the presence of petitioner/accused on the scene of crime, yet the other two eyewitnesses examined have not ruled out the presence of petitioner/accused on the place of occurrence. Moreso, there are other 4 eyewitnesses yet to be examined, and at this stage of trial, the question of credibility and reliability of the prosecution witnesses cannot be tested as the same would seriously prejudice the prosecution case. In 2009 (II) SLJ 681 (Gandarb Singh V/s State), this Court while rejecting bail to the accused indicted for commission of offence of murder u/s 302 RPC, in para 7,8,9 & 10 held as under:-

"(7) In order to decide this bail application, it is important to look into the evidence, which has come on record. Grant of bail at this stage depends upon the involvement of the accused in the same offences, which are reflected from the statement of witnesses, who have been examined. It is also important that any observation made which appreciating the evidence will have direct affect on the outcome of the trial.

However, it is not in dispute that court has power to grant bail during the pendency of the trial. The only question which requires to be examined by this court at this stage is that what is the evidence which has come against the accused (8) After scanning through the evidence which has come on record more particularly the statement of Sanjeev Kumar, I do not find at this stage that the petitioner is entitled to bail. (9) The accused can be granted bail only, if evidence, which come on record, overwhelmingly points towards non-involvement of the accused in the case. Where there are two views possible, the court must ordinarily refrain from exercising its powers under Section 498 Cr.pc while granting the bail in such cases.

8 Bail App No. 374/2022

(10) Coming to the case in hand, I do not find the accused entitled to bail". Ratio of judgment (supra) makes the legal position abundantly clear, that bail can be granted to an accused indicted for commission of offence of murder u/s 302 RPC only if the evidence on record does not point towards the involvement of accused in the case."

Ratio of the judgment (Supra) further makes the legal proposition abundantly clear, that the bail can be granted to accused indicted for commission of offence of murder u/s 302 RPC only if the evidence on record does not point towards involvement of the accused in the case. There are serious allegations against the petitioner/accused and other co-accused for committing murder of one Suresh Kumar. At this stage, it cannot be determined that the allegations are either false or not true as number of other material witnesses are yet to be examined by the prosecution, and there is every possibility that if the petitioner/accused is enlarged on bail he may influence the unexamined witnesses as he is facing trial for commission of offence of culpable homicidal amounting to murder which is punishable with death penalty or imprisonment for life. Law is no longer res-integra that gravity and seriousness of offence is a relevant consideration for grant or refusal of bail. It requires to be noted, for two (2) years the courts were functioning in restricted mode and obviously some delay might have been caused to the trial of the case due to COVID-19 pandemic restrictions which delay by no standards can be attributed to the prosecution. It is reminded that as petitioner/accused and other co-accused are facing trial for the last almost 8 years, the trial court is directed to speed up the examination of prosecution witnesses as expeditiously as possible and fix weekly calendars for examination of prosecution witnesses with the directions that the defence Counsel shall remain available on the calendars fixed so that it is made possible to conclude the trial within shortest possible time.

10. In the above backdrop and for the foregoing reasons, I do not find petitioner/accused entitled to bail at this stage, as the bail application is pre- mature, accordingly disallowed, rejected and dismissed.

11. Disposed off alongwith connected CMPs.


                                                            (MOHAN LAL)
Jammu:                                                         JUDGE
17.04.2023
Vijay


                                  Whether the order is speaking?            Yes/No
                                  Whether the order is reportable?          Yes/No

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