Jammu & Kashmir High Court
Kali Dass vs State And Ors. on 1 September, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
B.A No.103/2017 & MP No.1/2017
Date of order:-01.09.2017
Kali Dass V. State of J&K & ors.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing Counsel:
For the petitioner(s): Mr. M.R.Qureshi, Advocate
For the respondent(s) Mr. S.S.Nanda, Sr.AAG
i. Whether approved for reporting in Press/Media : Yes/No/Optional ii. Whether to be reported in Digest/Journal : Yes/No
1. Through the present bail application, Petitioner-Kali Dass seeks bail, inter alia, on the ground that he has been falsely implicated in a criminal case FIR No.85/2016 dated 23.05.2016 u/s 498-A/306 RPC registered at Police Station Gharota.
2. It is stated in the application that the petitioner and his father were taken into custody on 23.05.2016 and were kept for more than two months and thereafter both of them were released by the police after taking the undertaking from them that they shall remain present daily. It is further stated that for the last near about seven months, the petitioner along with his father were in the police; that they have cooperated , but have been falsely been implicated without any basis; that FIR No.85/2016 dated 23.05.2016 u/s 498-A/306 RPC was registered at Police Station Gharota and they were taken into custody and remained in custody for two month ; thereafter they were released. It is further stated that all of sudden on B.A No.103/2017 Page 1 of 7 18.12.2016, the petitioner and his father were again taken into custody and the Challan was presented on 11.01.2017, the co-accused in same FIR No.85/2016 dated 23.05.2016 has been released on bail vide order dated 14.01.2017. S That the challan has been presented on 11.01.2017 and the same is pending before the learned 1st Additional District & Sessions Judge, Jammu for evidence of the prosecution, as on date no evidence has been produced by the prosecution. The petitioner moved an application on 04.03.2017 before the learned trial Court which was rejected on 30.03.2017 without application of mind; the petitioner was arrested on 18.12.2016 in FIR No.85/2016, whereas the learned trial Court rejected the bail application stating therein that the FIR No.85/2016 was registered at Police Station Women Cell Jammu for the commission of offences u/s 306/498- A/34 RPC which is factually incorrect, as the FIR No.85/2016 under Section 498-A/306/34 RPC was registered by the Police Station, Gharota and not by the Police Station Women Cell, Jammu. Moreover the petitioner was arrested on 18.12.2016, and not on 20.12.2016 which is evident from the challan/charge sheet submitted before the learned trial Court. The Charge sheet has been framed on 20.03.2017 for the offence u/s 306/498-A RPC only and no charge sheet has been framed u/s 34 RPC. The co-accused has been released on bail on 14.01.2017. That no previous complaint was ever made against the petitioner up to the date of death; the her death took place all of sudden; that after her death, the statements of two witnesses namely Renu Devi D/o Sh. Soba Ram real sister of the deceased and Sh. Bansi Lal S/o Jaga Ram real uncle of the deceased were got recorded on 07.01.2017 before the learned Sub Judge Special Mobile Magistrate Jammu. The statements of these prosecution witnesses who happened to be the real sister and real uncle of the deceased are baseless, concocted and are in contradict to each other, as the statement of Renu Devi (real sister of the deceased) was also recorded u/s 175 Cr.P.C. on 13.11.2016 and her statements u/s164-A Cr.P.C. was recorded before the B.A No.103/2017 Page 2 of 7 Magistrate on 07.01.2017 after seven months of the occurrence, similarly the statement of prosecution witness Bansi Lal was recorded u/s 175 Cr.P.C. on 24.05.2016 and u/s 164-A Cr.P.C. on 07.01.2017 after the lapse of seven months from the date of alleged occurrence i.e 23.05.2017.
3. On the basis of afore mentioned submissions, learned counsel for the petitioner prays that the petitioner be granted bail; and he shall not violate and jump over the conditions imposed by this Court.
4. Mr. S. S. Nanda, learned Senior Addl. Advocate General, has filed objections, whereby bail application is opposed stating therein that a charge sheet/challan in case FIR NO.85/2016 under Sections 306/498-A/34 RPC against the accused persons including the petitioner was produced in the Court of law and presently the case is pending disposal before the Court of learned 1st Additional Sessions Judge, Jammu. The important witnesses to the occurrence are yet to be examined. The above titled bail application is not maintainable and deserves to be dismissed as being premature an without substantial change of the circumstance between the earlier application filed by the petitioner before the learned 1 st Additional Sessions Judge, Jammu which was dismissed on 30.03.2017 and the present application. The Hon'ble Supreme Court of India has laid down preposition of law regarding successive bail applications that an accused has a right to make successive applications for grant of bail, but the Court entertaining such subsequent bail applications has a duty to consider the reason and ground on which the earlier bail applications were rejected and in such cases, the Court has also a duty to record what are the fresh grounds which persuade the Court to take a view different from the one taken in the earlier applications. The accused/petitioner has deliberately and intentionally committed very heinous offence. Since there is also reasonable apprehension that in case the concession of bail is extended to the petitioner at this stage, he may abuse the liberty to subvert justice and threaten the prosecution witnesses. Keeping in view the gravity of accusation, nature of B.A No.103/2017 Page 3 of 7 evidence available and severity of the punishment provided for the offence charged under Sections 306/498-A RPC, the petitioner does not deserve the discretion of grant of bail in his favour, as such, the instant bail application is required to be rejected out rightly.
5. I have considered the submissions of learned counsel for the petitioner and learned Senior Addl. AG representing the State.
6. From the perusal of the photocopy of documents attached with file, it reveals that deceased was the wife of petitioner, who committed suicide by consuming some poisonous substance on 23.5.2016, on being harassed by petitioner and his father for being issueless and a threat that Kali Dass will commit second marriage. Accordingly FIR no. 85/2016 u/s 306/498- A/34 RPC in the case was registered in police station Ghorota; accused Kali Dass has been arrested on 18.12.2016. After completing the investigation, challan has been produced before 1 ST Additional Session judge, where proceedings are going on.
7. Accused persons have already been charge sheeted. Other accused namely Bishamber Dass has been enlarged on Bail.
8. The bail application of petitioner has been dismissed by Court below on 30.03.2017 on the ground that material witnesses are yet to be examined. The other accused, who is father of accused, has already been admitted to bail. Till today prosecution has produced only one witness despite availing 8 dates.
9. The law with regard to grant of bail is well settled. While granting bail the nature of accusation, punishment for which accused is charge-sheeted and availability of accused during trial are relevant considerations. In the present case, punishment for offence u/sections 306/498-A RPC is not death or life imprisonment, so the rigor of section 497 Cr. PC is not applicable. It is also a fact that the occurrence has taken place on B.A No.103/2017 Page 4 of 7 23.5.2016 and accused were taken into custody and were released by police with an undertaking that they will participate in investigation. After more than 7 months, statements of witnesses namely Renu, the sister of deceased and Bansi Lal, the uncle of deceased, u/s 164-A Cr.P.C. have been recorded, where they have stated some incriminating evidence against accused.
10. Accused is in custody since 18.12.2016. All the allegations leveled in the challan are subject to judicial adjudication.
11. In 2009 (3) JKJ 68, in which it has been held as under :-
"Ranbir Penal Code, Svt. 1989-Sections 306 and 498-A- Abetment of suicide-Bail-Taking an overall view of the allegations leveled against the applicant in the final police report, in the light of the evidence which the prosecution proposes to lead in the case, the provisions of section 306 RPC read with section 107 RPC and those of section 498-A RPC which require the prosecution to prove that the applicant's conduct was willful, and of such a nature, which was likely to derive his wife to commit suicide, besides the punishment which is provided for the offences with which the applicant stands charged and the principle of law that bail cannot be withheld as a matter of punishment-Mere recital in the report that statements of some more witnesses, who were posted at far off places, were yet to be recorded and the report of the forensic laboratory had to be obtained would not make the police challan incomplete final police report-Filing of subsequent supplementary challan to form part of the original challan too would not affect the status of earlier filed final police report- State has not been able to project-Any such case on the basis whereof it may be said that the applicant, who is a Captain in the Indian Army, is likely to flee from justice or there was reasonable grounds for believing that he would tamper with the prosecution evidence, when released on bail-Bail cannot be withheld as a matter of punishment-Under the circumstances when the applicant is admitted to bail on his furnishing recognizance of a surety besides his own recognizance in the amount of Rs. 50,000/- each to the satisfaction of Ld. 3rd Addl. Sessions Judge Jammu undertaking that he would attend the trial regularly and will not, in any manner whatsoever, come in B.A No.103/2017 Page 5 of 7 contact with prosecution witnesses or otherwise do any such act or omission which may impede the trial in the case."
12. In case titled Ishaq Ahmed Vs State, pronounced on 12th October 2012 by Hon'ble Karnataka High Court, it has been held as under:-
"5. The main allegation made against petitioner is that he consumed liquor and harassed his wife in connection with the demanding money for consuming liquor. The offence alleged against petitioner is under Section 306 of Indian Penal Code. This offence is not punishable with death or imprisonment for life. Petitioner is in judicial custodysince 06.09.2012. It is well settled law that pre-trial detention is bad in law. The investigation is completed and charge sheet has been filed. Therefore, presence of the petitioner is not required for the purpose of investigation. Therefore, considering the facts and circumstances of the case, I am of the opinion that this is a fit case to grant bail at this stage"
13. In case titled Jagir Singh v Jagjit Singh and anr., reported as 2012 (2) JKJ 231 HC, it has been held as under:-
"Code of Criminal Procedure, Svt. 1989 (1933 A.D) Section 497 & Constitution of India, Article 21--Bail -Grant of - Power has to be considered in backdrop of Article 1--After registration of the case and till the final conclusions are drawn by the trial court, the accused is presumed to be innocent. It is only when the guilt is proved against him beyond all shadow of doubt, he is convicted of the offence with which he is charged. The power to grant bail has to be considered in the backdrop of the constitutional guarantee contained in Article 21 of the Constitution of India, which guarantees right to liberty of an individual, The learned Magistrate has to ensure that accused remains available during trial before the court. The purpose can be accomplished by remanding the accused to the judicial custody or by giving him into the custody of sureties."
14. The offence u/s 306 RPC is heinous in nature but not punishable with death or imprisonment of life, so rigor of section 497 Cr.P.C. is not applicable. Law is also well settled that every person is presumed to be innocent till his guilt is proved and the innocent person has every right to defend his case the way he likes and in the instant case the accused is B.A No.103/2017 Page 6 of 7 behind the bars and he cannot defend his case there from. It is also well settled law that a person cannot be kept in the custody as a matter of punishment before trial.
15. In the present case, there are 23 witnesses cited in the challan list and out of whom only one has been examined. So definitely trial will take time to conclude. The apprehension of PP that accused will abscond, can be taken note by taking reliable surety. The continue incarceration for further period without the adjudication being finalized speedily, will amount to violation of fundamental right.
16. Keeping in view all the facts of the case, this application for bail is allowed; the accused is directed to be released from the custody of jail subject to his furnishing of surety bond and personal bond to the tune of Rs.50,000/- each to the satisfaction trial Court. The bail is granted with conditions that accused shall remain present before the trial Court on each and every date of hearing; he shall not leave the territorial jurisdiction of the Court without prior permission and shall also not come into the contact of complainant party and shall not influence or intimidate any of the prosecution witnesses in any manner whatsoever. In case of any violation of conditions, the prosecution may file application for cancellation of bail.
17. This bail application stands disposed of.
(Sanjay Kumar Gupta) Judge Jammu 01.09.2017 Vijay B.A No.103/2017 Page 7 of 7