Jammu & Kashmir High Court - Srinagar Bench
Manzoor Ahmad Bhat vs State Of J&K; on 1 March, 2018
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
B. A. No. 8/2018
Date of Order: 1st of March, 2018.
Manzoor Ahmad Bhat
Vs.
State of J&K through SHO, Police Station D. H. Pora, Kulgam
Coram:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
Appearance:
For the Petitioner(s): Ms Asma Rashid, Advocate.
For the Respondent(s): Mr Mehraj-ud-Din Bhat, Dy. AG.
Mr Syed Aftab Bukhari, SDPO, Qazigund (IO).
i) Whether approved for reporting Yes/No
{Oral};
01. Applicant, Manzoor Ahmad Bhat S/o Late Mohammad Ramzan Bhat R/o Waltengo, Kund, Tehsil Devsar, District Kulgam, is in the custody of police from 19th of November, 2017 in case bearing FIR No. 313/2017 registered in Police Station, Qazigund, for the commission of offences punishable under Section 212 of the Ranbir Penal Code (RPC) and Section 19 of the Unlawful Activities (Prevention) Act, 1967 (ULA).
B. A. No. 8/2018 Page 1 of 1102. The accused/ applicant herein has filed the instant bail application seeking his release on bail on the grounds detailed out in the application, with particular reference that his bail application, submitted before the Court of learned Principal Sessions Judge, Kulgam, was rejected on 26th of December, 2017, when there was no material available on record against him.
03. The accused/ applicant herein has chosen not to challenge the order of rejection of his bail by the Court of learned Principal Sessions Judge, Kulgam, however, he has filed the instant bail application seeking his release on bail, inter alia, on the following grounds:
a) That the accused/ applicant is not involved in the commission of offences punishable under Section 212 of the Ranbir Penal Code (RPC) and Section 19 of the Unlawful Activities (Prevention) Act, 1967 (ULA);
b) That the police report submitted before the trial Court as also before this Court does not establish the involvement of the accused/ applicant herein in harbouring any terrorist, but only reveals that the accused/ applicant herein has provided food and shelter to the militants on their way to the place of incidence.
This accusation, as stated, is denied by the accused/ applicant herein and is subject to establishment of the same before the Court of law;
c) That the accused/ applicant herein is a Government employee and is discharging his duties to the best of his capability, capacity, with full devotion/ dedication and has no link or connection, whatsoever, with any anti-social/ militant organization, which fact is also substantiated by the investigation as no such link has been established against him till the date of incidence/ occurrence;
d) That the accused/ applicant herein is an innocent person and has not committed any offence, be it simple or heinous and that his B. A. No. 8/2018 Page 2 of 11 track record is unblemished in the society as also in the police records;
e) That the accusations made against the accused/ applicant herein are false and frivolous, levelled at the behest of some "Unseen Hands' and the police is trying to implicate him under a false and frivolous case;
f) That the full text of the FIR in question does not make out any offence against the accused/ applicant herein, not to talk of offences under Section 219 of the Ranbir Penal Code (RPC) and Section 19 of the Unlawful Activities (Prevention) Act, 1967;
g) That the accused/ applicant herein is the only earning hand of his entire family and all his family members are depending on his earnings, as such, in case, he is not released on bail and not allowed to perform his duties for earning his livelihood, the entire family will come to a starvation.
h) That the accused/ applicant herein is entitled to the relief as prayed for, as keeping him in jail will amount to punishing him without there being any substantial evidence on record, thereby resulting in defeating the well-established principle of 'grant of bail and not jail till the guilt is proved' before the Court of law.
i) That the accused/ applicant herein has a liberty guaranteed under the Constitution of India to live his life without curtailments, unless such curtailment is warranted on the substantial grounds and material, but, in the instant case, no such material evidence is available which establishes the commission of offences alleged to having been committed by the accused/ applicant herein, as such, curtailing his life and liberty amounts to violation of Article 41 of the Constitution of India;
j) That the police report submitted before the trial Court as also before this Court reveals that the incident of encounter between the security forces and the terrorists took place in the adjacent village and not in the village, where the accused/ applicant herein resides, as such, there is no question of the militants having taken shelter and food in the accused/ applicant's house. It is, as stated, a concocted story made by the police to involve the accused/ applicant herein.
B. A. No. 8/2018 Page 3 of 11k) That the accused/ applicant herein also undertakes to cooperate with the investigating authorities, as and when required, so as to ensure that the investigation in the case is taken to its logical conclusion.
04. On consideration of the matter, this Court, in terms of order passed on 17th of January, 2018, issued notice to the respondents for filing objections. Thereafter, the matter was again listed on 29 th of January, 2018, 9th of February, 2018, 22nd of February, 2018, 23rd of February, 2018 and 27th of February, 2018, but the respondent State have failed to file their objections, however, same was finally filed after availing five opportunities and, subsequently, the matter was partly heard on 27 th of February, 2018 and the Prosecution was directed to produce the case diary. Today, when the matter came up for hearing, the Investigating Officer (IO), present in person before the Court, has produced the case diary.
05. Heard the learned counsel for the parties, perused the case diary and considered the matter.
06. Perusal of the case diary reveals that the accusations made against the accused/ applicant herein are solely based on the disclosure statement of the accused, namely, Bilal Ahmad Sheikh S/o Ghulam Mohammad Sheikh R/o Rampora, Qaimoh, with reference to the recovery of the following items from the house of the accused/ applicant herein:
a) Stove (Tankey Wala) 1 No.
b) Patila (Cooking pot) small 1 No.
c) Patila (Cooking pot) large 1 No.
B. A. No. 8/2018 Page 4 of 11
d) Small steel plates 2 Nos.
e) Steel Glass 1 No.
07. The Prosecution has failed to bring into the notice of this Court the available evidence which would involve the accused/ applicant herein in the commission of offences punishable under Section 212 of the Ranbir Penal Code (RPC) and Section 19 of the Unlawful Activities (Prevention) Act, 1967. Moreover, the statements of the available witnesses recorded by the Prosecution have not even mentioned the name of the accused, not to talk of his involvement in any offence.
08. The investigating Officer, namely, Shri Syed Aftab Bukhari (SDPO, Qazigund), available in the Court, when pointedly asked, as to which part of the evidence involves the accused/ applicant herein in the commission of aforesaid offences, referred to the disclosure statement of the accused, namely, Bilal Ahmad Sheikh S/o Ghulam Mohammad Sheikh R/o Rampora, Qaimoh. Perusal of the disclosure statement of the said Bilal Ahmad Sheikh, as discussed above, only reveals the recovery of the aforementioned utensils used for providing food to the militants. The Officer has further relied upon the statement of one Abdul Gani Badroo S/o Mohammad Qasim Badroo R/o Waltengnoo, Kund, Devsar, Kulgam, perusal whereof, reveals that from one of the rooms of the house of the accused/ applicant herein, one stove and some utensils, used for the preparation of food, have been seized in his presence on the disclosure statement of said Bilal Ahmad Sheikh.
B. A. No. 8/2018 Page 5 of 1109. Learned counsel for the accused/ applicant herein submits that the statement of the accused, Bilal Ahmad Sheikh, as also of the witness, Abdul Gani Badroo, cannot form the basis for involving the accused/ applicant herein in the commission of offences punishable under Section 212 of the Ranbir Penal Code (RPC) and Section 19 of the Unlawful Activities (Prevention) Act, 1967, as such statement, even if accepted for the sake of arguments, but not admitted, does not disclose the offences committed by the accused/ applicant herein under Section 212 of the Ranbir Penal Code (RPC) and Section 19 of the Unlawful Activities (Prevention) Act, 1967. For the purpose of further elaborating the argument, the learned counsel has invited the attention of this Court to Section 212 of the Ranbir Penal Code (RPC) and Section 19 of the Unlawful Activities (Prevention) Act, 1967, which are taken note of hereinbelow, verbatim:
"Section 212 of the Ranbir Penal Code (RPC): -
Whenever an offence has been committed, whoever harbours or conceals a person who he knows or has reason to believe to be the offender, with the intention of screening him from legal punishment.
If a capital offence Shall, if the offence is punishable with imprisonment with death, be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine;
If punishable with imprisonment for life and if the offence is punishable with imprisonment for life or with imprisonment which may extend to ten years, shall be B. A. No. 8/2018 Page 6 of 11 punished either description for a term which may extend to three years and shall also be liable to fine;
Or with imprisonment;
And if the offence is punishable with imprisonment which may extend to one year, and not to ten years, shall be punished with imprisonment of the description provided for the offence for a term which may extend to one fourth part of the longest term of imprisonment provided for the offence, or with fine, or with both;
"Offence" in this Section includes any act committed at any place out of Jammu and Kashmir State, which is committed in Jammu and Kashmir State, would be punishable under any of the following Sections, namely, 302, 304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457, 458, 459 and 460; and every such act shall, for the purposes of this Section, be deemed to be punishable as if the accused person had been guilty of it in Jammu and Kashmir State."
"Section 19 of the Unlawful Activities (Prevention) Act, 1967: Punishment for harbouring, etc.-- Whoever voluntarily harbours or conceals, or attempts to harbor or conceal any person knowing that such person is a terrorist shall be punishable with imprisonment for a term which shall not be les than three years but which may extend to imprisonment for life, and shall also be liable to fine:
Provided that this Section shall not apply to any case in which the harbor or concealment is by the spouse of the offender."
10. The offences, alleged to have been committed by the accused/ applicant herein, i.e. under Section 212 of the Ranbir Penal Code (RPC) is bailable, whereas the one under Section 19 of the Unlawful Activities (Prevention) Act, 1967, carries the punishment of not less than three B. A. No. 8/2018 Page 7 of 11 years, which may extend to imprisonment for life and is also liable to fine, in case guilt is established before the Court of law.
11. Learned counsel for the accused/applicant herein further submits that the text of the FIR , statements of the available witnesses, disclosure statement of the accused, Bilal Ahmad Sheikh, etc. do not make out a case of involvement of the accused/ applicant herein for the commission of offences punishable under Section 212 of the Ranbir Penal Code (RPC) and Section 19 of the Unlawful Activities (Prevention) Act, 1967, as the first ingredient is the knowledge of the accused with reference to knowing the subject to be a terrorist and an offender. It is submitted that the Prosecution has not established the fact that the accused/ applicant herein was in know of the fact that the persons, who are alleged to have taken food in his home, are terrorists.
12. Mr Mehraj-ud-Din Bhat, the learned Dy. AG, has vehemently supported the case of the Prosecution with reference to the involvement of the accused/ applicant herein in the commission of offences punishable under Section 212 of the Ranbir Penal Code (RPC) and Section 19 of the Unlawful Activities (Prevention) Act, 1967. He submits that the accused/ applicant herein has provided food and shelter to the terrorists, while they were on their way to the place of incidence/ occurrence. The learned Dy.AG further submits that all the terrorists were killed in an encounter with the security forces, after having taken food in the house of the accused/ applicant herein. The learned Dy. AG has also argued that there is a bar in terms of Section 43 (d) (5) of the Unlawful Activities B. A. No. 8/2018 Page 8 of 11 (Prevention) Act, 1967, for the grant of bail. This argument of the learned Dy. AG has no substance as the only bar is with reference to providing an opportunity of being heard on the application of bail to the Public Prosecutor. In the instant case, the Prosecution has been provided ample opportunities of being heard as also adequate opportunity of defending their stand has been granted to them, therefore, the bar does not apply in the present case.
13. This Court is conscious of the discussions to be made with reference to grant or otherwise of the bail to an accused involved in any offence. At this stage, there is no occasion for this Court to return any finding on the evidence recorded by the Prosecution under Section 161 of the Criminal Procedure Code (Cr. P. C.), but, at the same time, this Court can also not lose sight of the cardinal principle of scanning and perusing the evidence for the purpose of gathering the involvement or otherwise of the accused. The principles with reference to grant of bail, which is a concession to be exercised by the Courts, are well settled, therefore, on the basis of the pleadings of the parties and scrutinization of the case diary, this Court is of the considered opinion that the accused/ applicant herein deserves the concession of grant of bail. However, the concession so granted shall not form an impediment in the way of the Prosecution for establishing its case against the accused/ applicant herein in the Court of law.
14. On the perusal of the case diary with reference to the disclosure statement of the accused, namely, Bilal Ahmad Sheikh, this Court, B. A. No. 8/2018 Page 9 of 11 without discussing such evidence, as it may result in influencing the mind of the trial Court, is convinced that the accused/ applicant herein deserves the concession of grant of bail, which shall, of course, be subject to all safeguards with reference to conditioning the such bail for ensuring completion of the investigation/ trial.
15. In the above background, the instant bail application is allowed and the accused/ applicant herein, namely, Manzoor Ahmad Bhat S/o Late Mohammad Ramzan Bhat R/o Waltengo, Kund, Tehsil Devsar, District Kulgam, presently in the custody of the police in case bearing FIR No. 313/2017 registered in Police Station, Qazigund, for the commission of offences punishable under Section 212 of the Ranbir Penal Code (RPC) and Section 19 of the Unlawful Activities (Prevention) Act, 1967, shall be released on bail on the following terms and conditions:
i. The accused/ applicant herein shall furnish bail bonds in the amount of Rs. 50,000/- to the satisfaction of Investigating Officer (IO) of the case with two like sureties;
ii. He shall not leave the State, without seeking the permission of the trial Court;
iii. He shall remain available with the Investigating Officer (IO) of the case, as and when required for the purpose of completion of investigation, if not already completed; and iv. He shall not hamper or tamper with the Prosecution evidence.
18. Before parting with the case, it is made clear that grant of concession of bail in favour of the accused/ applicant herein is on the basis of him being not involved in any terrorist related activity or having any established bad police record. The respondent-State, when asked, B. A. No. 8/2018 Page 10 of 11 about the involvement of the accused/ applicant herein in any other case relating to the terrorist activities, could not point out any, other than the one subject matter of the instant bail application. So, this incident can be termed as being single one with reference to the alleged involvement of the accused/ applicant herein, subject to establishing his guilt before the trial Court. Concession of bail in favour of the accused/ applicant herein shall not form a ground for other accused as their involvement may be connected with the terrorist activities, which, when considered by any court of competent jurisdiction, shall be decided on its own merits.
(Ali Mohammad Magrey) Judge SRINAGAR March 1st, 2018 "TAHIR"
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