Jammu & Kashmir High Court
State Of J&K vs Sat Paul on 20 August, 2010
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. Cr Rev no. 56 OF 2009 State of J&K. Petitioners Sat Paul. Respondent !Mr. R. S. Jamwal, PP ^Mrs. Sindhu Sharma, Advocate. Honble Mr. Justice Dr. Aftab H. Saikia, Chief Justice Date: 20.08.2010 :J U D G M E N T :
1.This Criminal Revision under Section 435 read with Section 437 of the Code of Criminal Procedure Svt. 1989 (for short Cr. P. C) has been preferred for seeking quashment of order dated June 2, 2009 passed by learned Additional Sessions Judge, Kathua in FIR no. 95/2007 whereby the sole respondent, who was charged for commission of offence under Section 302 RPC, was granted bail.
The petitioner, in the revision petition, has averred as under:
May it please your Lordships:
The petitioner/State humbly submits as under:-
1. That case FIR No. 95 of 2007 for offence under section 302 RPC, the Respondent was put to trial. The Respondent was charged. The prosecution was leading its evidence. The Court below vide Order dated 2.6.2009 admitted the Respondent to bail, the certified copy of the Order enclosed as Annexure-A.
2. The order dated 2.6.2009 is liable to be set aside on the following grounds:
(A) The Court below has committed material illegality and irregularity while passing the Order dated 2.6.2009 in case FIR No. 95 of 2007. Two persons namey Joginder Singh and Vijay Kumar died and the occurrence attributed to the criminal Act upon the Respondent. The ocular evidence sufficiently established the case against the Respondent. The Court below in the mid of the trial when material prosecution evidence are still to be recorded, the Respondent-accused has been wrongly admitted to bail.
3. The Government has sanction the filing of the revision vide Order No. 1394-LD (ACQ) of 2009 dated 29.6.2009. Copy of sanction enclosed as Annexure-B. It is, therefore, humbly prayed that the Criminal revision against the Order dated
2.6.2009 may be accepted and Order be set aside. Having gone through the averments made in the petition, it appears that the petitioner has basically sought for cancellation of bail granted to the respondent by way of quashment of the impugned order.
From the close perusal of the statements made in paragraph no. 2, as quoted above, as well as after hearing learned counsel for the petitioner, it transpires that the bail granted to the respondent should be cancelled by setting aside the impugned order primarily on the ground that although ocular evidence sufficiently established the case against the respondent and the material evidence of the prosecution are yet to be recorded, learned trial Court has committed an error in passing the impugned order and thereby granting bail to the respondent. No other valid grounds have been set out in this petition warranting interference with the impugned order.
5. It is essential that for consideration of cancellation of bail of an accused once granted, it is to be considered that as to whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with the evidence. These basic grounds seeking cancellation of bail has not been reflected in this application. Nor any complaint has been made against the accused as regards tampering with the evidence.
6. It is well settled that a very cogent and overwhelming circumstances are necessary for an order seeking cancellation of bail. The power to grant bail is not to be exercised as if the punishment before the trial is being imposed. (see Bhagirathsinh Judeja v. State of Gujrat, reported in AIR 1984 SC 372).
7. Having considered the averments made in this application and also upon hearing the learned counsel for the parties as well as keeping in view the legal position, as noted above, this Court is of the view that no prima facie case is made out to disturb the impugned order allowing the respondent to go on bail pending his trial.
8. Accordingly, this revision petition stands dismissed.
(Dr. Aftab H. Saikia) Chief Justice Jammu, 20.08.2010 Tilak, Secy.