Mohammad Miskeen Khan vs Ut Of Jk And Others on 17 February, 2022

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Jammu & Kashmir High Court - Srinagar Bench

Mohammad Miskeen Khan vs Ut Of Jk And Others on 17 February, 2022

1. Inherent jurisdiction under Section 482 Cr.P.C. is being invoked by the petitioner for quashment of order dated 29.12.2020 (for short impugned order) passed by the Court of Additional Sessions Judge, Handwara (for short Trial court), in terms whereof respondent no.4 has been granted bail. Before adverting to the grounds of challenge, facts relevant and germane herein need to be detailed out hereunder.

2. A criminal case under FIR No. 72/2017 for offence under Section 302 IPC came to be registered against the respondent no. 4 herein alleging that he murdered his wife namely Nahida Begum in his house on 14.11.2017. A charge sheet dated 19.01.2018 was laid before the Trial court in the matter upon completion of investigation against the respondent no. 4. for commission of offence Under Section 302 IPC. The respondent no. 4 came to be charged for the offence supra by the Trial court on 18.04.2018. A bail application came to be moved by the respondent no. 4, initially before the Trial court which came to be dismissed on 31.08.2019. Record reveals that there are 24 listed witnesses out of which 12 are witnesses to the occurrence. The impugned order is being assailed by the petitioner inter alia on the following grounds:

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A. That the private respondent/accused has committed heinous cold blooded murder of the daughter of the petitioners, as such was not entitled for grant of bail.

B. That while exercising discretion for grant of bail, the court has to consider certain conditions, such as heinousness of offence, heinousness of acquisition, severity of punishment, character of the accused, question of hampering the investigation or tempering with the evidence and also the nature of offences and impact of crime on the society, but the trail court has granted the bail without taking into consideration these conditions.

C. That the prosecution is banking upon the list of more than 24 witnesses, among whom only few have been examined and the trial court while granting bail to the accused has not appreciated this fact. D. That the trial court has lost sight of the Judgment of this Hon'ble Court titled Gandrab Singh VS State (Bail Application no. 28/2008 (Jammu) decided on 10.11.2008), wherein the court held that the accused can be granted bail only if evidence come on record overwhelmingly point towards noninvolvement of the accused in the case and where there are two views possible, the court must ordinarily refrain from exercising its power under section 498 Cr.P.C while granting bail in such cases. E. That the trial court has also lost the sight on Hon'ble Apex Court Judgment titled Shazad Hassan Khan Vs Ishtiaq Hassan Khan and another (1987 AIR 1613), wherein their Lordships enunciated that no doubt liberty of citizen is to be zealously safeguarded by the Court, nevertheless when a person is accused of offence like Murder and their being prima facie material, the prosecution is entitled to place the facts before the court. Liberty as further observed is to be secured through process of law, which is administered keeping in mind the interests of accused, the near and dear of victims who lost his life, who feel helpless and believe that there is no justice in the world, as also the collective interest of the society, so that parties did not lose faith in the institution and indulge in private retribution. The learned judge who had granted bail was held by their Lordships was unduly influenced by the concept of liberty disregarding the facts of the case.

F. That in Ash Mohammad Vs. Shiv Raj Singh (decided on 20.09.2012), their Lordships of the Hon'ble Apex Court have observed that we do not deny for a moment that period of custody is a relevant factor, but 2 CRM(M) No. 36/2021 simultaneously the totality of circumstances and the criminal antecedents are also to be weighed, they are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter we are inclined to think that the social concern in the case at hands deserves to be given priority over lifting the restriction of liberty of the accused.

G. In Gurcharan Singh Vs State ( 1978 Cr.L.J 120), the Supreme Court of India, held that the Session Judge did not take into proper account the grave apprehension of the prosecution that there was a likelihood of the accused persons tempering with the prosecution witnesses. In the peculiar nature of the case revealed from the allegations and the position of the accused in relation to the eye witnesses, it was incumbent upon the Sessions Judge to give proper weight to the serious apprehension with regard to tempering with the eye witnesses.

3. Heard learned counsel for the parties and peruse the record.

4. Before proceeding further in the matter, it would be appropriate and advantageous to refer to the law laid down by the Apex Court relating to the subject of bail and issues connected thereto. In Puran, Shekhar & Anr. Vs. Ramjbilas reported in 2001 (6) SCC 338, in para 10, it has been noted as follows: "It has been held that generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course administration of justice or evasion or attempt to evade the due course of justice or abuse the concession granted to the accused in any manner. It is however to be noted that this court has clarified that these instances are merely illustrative and not exhaustive. On such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the society. Therefore, an arbitrary and wrong exercise of discretion by the trial court has to be corrected.

In para 11 of the Judgment supra it has been also noted as under: -

"Further, it is to be kept in mind that concept of setting aside the unjustified illegal or perverse order is totally different from on concept of cancelling of bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation."

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5. Keeping in mind the aforesaid legal position let the issues involved in the petition be adverted to.

6. Perusal of the tends to show that 24 witnesses have been listed as prosecution witnesses and 12 witnesses thereof as witnesses to the occurrence. Record would further reveal that though initially on 31.08.2019, the Trial court rejected the earlier bail application of the respondent no. 4 on the ground of it being premature yet has granted the bail in terms of the impugned order to the respondent no. 4, though noticing that the prosecution has produced 12 witnesses stating that the said witnesses have not stated anything incriminating against the accused person. The Trial court, however has failed to point out even for the prima facie purposes as to whether there were discrepancies in the statement of the said witnesses, inasmuch as that what were the said discrepancies or the infirmities which did not connect the respondent no. 4 with the commission of the offence, so much so the Trial court seemingly has not even expressed any reason or justification as to the left over prosecution witnesses who are yet to appear in the witness box while passing impugned order.

7. Perusal of the impugned order would further tend to show that the Trial court has proceeded to consider the bail application and pass the impugned order in breach and violation of the principles supra laid down by the Apex Court, besides having overlooked the other circumstances including the nature accusation and the severity of the punishment in case of conviction and the nature of supporting evidence, inasmuch as reasonable apprehension of tempering with the witness or apprehension of threat to the complainant. The law evolved on the subject by the Apex Court provides that although a conclusive finding in regard to the points urged by the parties is not expected of the court considering the bail application yet giving reasons is different from discussing merits or demerits. The Trial court in the impugned order has overlooked the aforesaid principles and prepositions of the Apex Court in as much as failed to consider the bail application in its true and correct perspective. The only reason the court has recorded in the impugned order for reference and convenience is extracted and reproduced hereunder;

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"I have heard learned counsel for the applicant/accused and learned APP for the state and also perused the application, challan, objections of learned APP and the statements of prosecution witnesses recorded. From the perusal of the challan it is revealed that the accused was charge sheeted on 18.04.2018 for the commission of offence under Section 302 RPC and the accused pleaded not guilty to the charges leveled against him and accordingly prosecution was directed to adduce evidence in support of its case and accordingly prosecution has produced twelve witnesses whose statements came to be recorded. The witnesses produced by the prosecution have not stated anything incriminating against the accused. The statements of all the twelve witnesses produced by the prosecution till date are full of contradictions, discrepancies and infirmities."

8. In rest of the impugned order the Trial court has either referred to the precedents of this Court or of the Apex Court even remotely indicating as to how the said Judgments are applicable to the facts and circumstances of the case. The Trial court has mechanically passed the impugned order which legally is not sustainable.

9. The preliminary objections qua the maintainability of the petition as raised by the counsel for the respondent no. 4 is well answered by the Apex Court in case titled "State of Karnataka Vs. Devenderappa and anr. 2002 (3) SCC 89" para 6 noted as under:-

" It has been laid down that all courts whether civil or criminal possess, in the absence of express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undue a wrong in the course of administration of justice and that qua an interlocutory order as well power under section 482 can be exercised by the High Court in case the impugned order clearly brings out a situation which is an abuse of process court, or for the purpose of securing the ends of justice interference of High Court is absolutely necessary, then nothing contained in section 397 can limit or affect the exercise of inherent of power of High Court."

And para 17 of Puran Vs. Rambilas (supra), noted as under:-

"Further, even if it is an interlocutory order, the High Courts inherent jurisdiction under section 482 is not affected by the provisions of section 397 (3) of Code of Criminal Procedure. That the High Court may refuse to exercise its jurisdiction under section 482 on the basis of self imposed restriction is a different aspect. It cannot be denied that for securing ends of justice, the High Court can interfere with the order which causes miscarriage of justice or is palpably illegal or is unjustified.(Madhu Limaye Vs. State of Maharashtra 1977 (4) SCC 551 and Krishnan Vs. Krishnaveni 1997 (4) SCC 241."

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10.For all that has been observed and discussed above, this Court while exercising inherent jurisdiction sets aside the order impugned, as a corollary whereof the accused namely Sajad Ahmad Khan/respondent no. 4 shall surrender before the SHO/respondent no. 3 on 10.03.2022. The SHO shall consequently take necessary steps and measures upon taking into custody of respondent no. 4 as are required to be taken under law.

11.It is made clear that nothing hereinabove shall be construed to be expression of any opinion about the guilt or innocence of the respondent no. 4 as the same will be decided by the trial court on its own merits after analyzing the evidence that surfaces on record during the trial of the case

12.Disposed of.

(JAVED IQBAL WANI) JUDGE SRINAGAR 17.02.2022 "Imtiyaz"

                               i.    Whether the order is speaking?      Yes/No

                               ii.   Whether the order is reportable?   Yes/No




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IMTIYAZ UL GANI                                                         CRM(M) No. 36/2021
2022.03.02 10:20
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Jammu & Kashmir High Court - Srinagar Bench