Jammu & Kashmir High Court - Srinagar Bench
Mohammad Sultan Mir vs State Of Bihar (Air 1994 Sc 2420) on 27 April, 2012
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR B.A. No. 42 of 2011 Cr.M.P No.187 of 2011 Cr.M.P No. 413 of 2011 Cr.M.P No.101 of 2012 Cr.M.P No.112 of 2012 Cr.M.P No.115 of 2012 Mohammad Sultan Mir Petitioners State of J&K Respondents !Mr. Z. A. Qureshi, Advocate ^Mr. N. H. Shah, Advocate Honble Mr. Justice Mohammad Yaqoob Mir, Judge Date:27/04/2012 : J U D G M E N T :
1) Case registered as FIR No.173/1997, P/S Ganderbal, culminated in presenting the charge sheet (challan) to the effect that the petitioner along with other accused, during investigation, are established to have committed offences punishable under Section 302, 364, 120-B and 201 RPC.
2) It is during the investigation petitioner Mohammad Sultan has turned approver and made a statement under Section 164 Cr. P. C before the Magistrate divulging that Major Parera of 3rd Kumaon Rifles and Abdul Rashid Sofi were involved in the murder of deceased Ghulam Nabi Malik. Therefore, in view of Section 337(3) Cr. P. C petitioner is in custody so seeks release on bail.
3) Guarantee to liberty cannot be conceptualized to be such which will offend or shock the conscience of the society. A person who claims protection to his liberty, as guaranteed under Article 21 of the Constitution, is supposed to respect such guarantee by acting in a manner which may not attract the applicability of reasonable restriction. A person who commits a horrifying murder or whose being at large shall be a persistent threat to the mankind or persistent threat to the system as a whole, he cannot claim protection of the liberty as guaranteed, his being at large will definitely be to the discomfort and disadvantage of others, therefore, curtailment in such a case becomes imperative. Release or grant of bail has to be governed by peculiar facts of each case.
4) Now coming to the circumstances which have prompted the petitioner to seek bail. Major Parera, one of the accused, has sought quashment of FIR No.173 and the order which the committal Magistrate had passed on 11.12.2003. Rest of the accused also filed Criminal Revision No.48, bail application No.48/2004 and Petition U/S 561-A No.36/2004 in this Court. All the said petitions were disposed of by order dated 25.5.2007, in terms whereof, Mohammad Yasin Sofi and Irshad Ahmad Sofi were admitted to interim bail whereas Mohammad Sultan Mir (petitioner) and Abdul Rashid Sofi were refused bail. The petition of Major Parera under Section 561-A Cr. P. C was dismissed.
5) The trial court initiated process to secure presence of Major Parera, who has questioned the order/proceedings before the Honble Supreme Court. An interim order on 11.7.2007 has been passed by the Honble Apex Court which reads as under:
Taken on board.
Delay condoned.
Issue notice.
Meanwhile, operation of the impugned order as well as execution of non-bailable warrant is stayed.
6) Accused Abdul Rashid Sofi thereafter had filed bail application but same was not allowed in view of pendency of petition before the Honble Supreme Court. However, in the meantime, when the matter came up before the Honble Apex Court on 23.1.2009, following direction was passed:
Heard learned counsel for the parties.
We clarify that the interim order dated 11th October, 2007 will not come in the way of consideration of bail applications of the other accused. The trial Court shall now proceed with the bail applications of the other accused and decide the same on their own merits in accordance with law.
7) Consequently application of accused Abdul Rashid Sofi was considered by this Court while disposing of Criminal Revision No.19/2009 and detailed order has been passed on 28.7.2009 wherein all the facts and circumstances of the case have been noticed. Then based on the above referred order, the bail application of said Abdul Rashid Sofi was considered and it was recorded:
Keeping in view facts of the case, the time which the trial of the case may take, after the conclusion of the proceedings before the Honble Supreme Court of India, I do not see any justification to keep the petitioner in custody at least, until his trial actually commences. Finally it has been concluded as under:-
Accordingly, treating this petition as bail application, the petitioner is admitted to interim-bail until the commencement of his trial, on his furnishing personal Re-cognizance and Re- cognizance of two sureties in the amount of Rs.50,000/ each to the satisfaction of the trial Court. The said direction is controlled by two conditions: (1) that the said petitioner will appear before the trial court and shall not leave its jurisdiction, unless otherwise permitted by the Court, and, (2) shall not come in contact or influence in any manner whatsoever, the prosecution witnesses.
8) The petitioner herein, who has turned approver, is in custody for last more than seven years. He also claims bail on the aforesaid analogy. Now the only difficulty in his way is that he is an approver, the moment he turns to be an approver, he ceases to be an accused.
Section 337 (3) of the State Code provides as under:-
Such person, unless he is already on bail, shall be detained in custody until termination of the trial.
9) Learned counsel for the respondents would contend that until conclusion of the trial, petitioner cannot be admitted to bail because word shall employed in sub-section (3) is mandatory.
10) The pendency of petition on behalf of alleged accused Major Parera before the Honble Apex Court, in view of order passed by the Honble Apex Court dated 23.1.2009 as reproduced in order dated 28.7.2009 passed by this Court in Criminal Revision No.19/2009, clearly provides that bail applications of other accused are open to be decided on their own merits.
11) The submission of the learned counsel for the respondents that the petitioner being approver has to remain in jail until termination of the trial, in the facts and circumstances of the instant case, looses significance because all the accused are at large. Should all accused remain at large and the accused who has turned as approver to remain in the custody indefinitely and more particularly in the circumstances of the case when trial is yet to commence and is not to commence for time being. Furthermore, petitioner is ailing and his health condition is deteriorated, certificate issued by the SKIMS is to the effect that the petitioner is a case of Type-2DM, Hypertension, CAP(L Midzone Haziness), Diabetes Mellites, is a life consuming disease. In addition a communication has been received from Superintendent Central Jail, Srinagar dated 06.04.2012 addressed to Joint Registrar, High Court, Srinagar, wherein present health status of the petitioner Mohammad Sultan has been reported. It is recorded that the petitioner (under-trial) is presently admitted in SKIMS Soura with effect from 03.04.2012 in Cardiology Ward and the SKIMS authorities have advised for plantation of pacemaker and, as such, permission has been sought for plantation of pace maker but at the same time it has been mentioned that the condition of the under-trial is stable.
12) The report so received along with report of the Principal Sessions Judge dated 30.03.2012 has been treated as Cr. MP No.115/2012 and vide order dated 18.04.2012 passed therein, Superintendent Central Jail, Srinagar has been observed to be at liberty to take all requisite steps for ensuring providing of all medical facilities including plantation of Pacemaker in accordance with applicable rules and norms. All authorities including Medical authorities were directed to adhere to all requisite formalities as shall be necessary for providing such medical facilities.
13) Learned counsel for the petitioner contends that the approver, no doubt, has to remain in custody until termination of trial but in exceptional circumstances grant of bail is permissible. In support thereof, relied on the judgment rendered by the Honble Apex Court in Suresh Chandra Bahri vs. State of Bihar (AIR 1994 SC 2420).
14) In the reported judgment the approver was enlarged on bail. It was contended that clause (b) of Section 306(4) Cr. P. C (corresponding to Section 337 (3) of the State Cod) provides that the approver shall be detained in custody until termination of trial unless he is already on bail but contrary to that the approver was enlarged on bail after he was granted pardon and as such the trial was vitiated. Honble Apex Court in para 34 of the judgment has observed as under:-
It is no doubt true that clause (b) of S.306(4) directs that the approver shall not be set at liberty till the termination of the trial against the accused persons and the detention of the approver in custody must end with the trial. The dominant object of requiring an approver to be detained in custody until termination of the trial is not intended to punish the approver for having come forward to give evidence in support of the prosecution but to protect him from the possible indignation, rage resentment of his associates in a crime to whom he has chosen to expose as well as with a view to prevent him from the temptation of saving his one time friends and companions after he is granted pardon and released from the custody. In the said para it has been further observed: one thing is clear that the release of an approver on bail may be illegal which can be set aside by a superior Court, but such a release would not have any effect on the validity of the pardon once validly granted to an approver. In these circumstances even though the approver was not granted any bail by the committal Magistrate or by the trial Judge, yet his release by the High Court would not in any way affect the validity of the pardon granted.
15) Next learned counsel relied on the judgment reported in K. L. J.
1988 724 wherein, in the peculiar facts, having regard to inordinate delay in trial and the manner in which proceedings were conducted, the approver was granted bail.
16) Then again reliance has been placed on the judgment reported in AIR 1958 Punjab 72, following portions from para 17 are relevant to be quoted:
It could not have been the intention of the Legislature that a person who has been granted a pardon in respect of a particular offence should be kept in confinement for an indefinite period particularly when Government have not been able to decide during the last 15 months, whether the prisoners should be prosecuted at all If there is no such trial and no likelihood of such trial then cessante ratione lex ipsa cessat. In re Dragon Bapu ILR 46 Bom 120 at p.123: (AIR 1922 Bom 177 (1) at p.177 (1)(J). This is an eminently fit case in which the inherent powers of this Court to prevent the abuse of the process of the Court be exercised in favour of a person who has been in confinement for several months and who was recently released on parole at the urgent request of the Solicitor General. I direct that the approver shall be released on bail on furnishing security to the satisfaction of the District Magistrate.
17) The Full Bench of the High Court of Rajasthan in the case reported in 1986 Cr. L. J. 1488 has held as under:-
Therefore, S. 482 Cr. P. C gives ample power to this Court. However, in exceptional cases to enlarge the approver on bail, we answer the question that according to S. 306(4)(b) Cr.P.C. the approver should be detained in custody till the termination of trial, if he is not already on bail, at the same time, in exceptional and reasonable cases the High Court has power under S. 482, Cr. P. C. to enlarge him on bail or in case there are circumstances to suggest that his detention had been so much prolonged, which would otherwise outlive the period of sentence, if convicted, his detention can be declared to be illegal, as violative of Art. 21 of the Constitution.
18) Liberty of a person is precious. Reasonable curtailment is permissible. The curtailment which will offend the protection guaranteed under Article 21 of the Constitution has to be negated.
Every case presents its unique features and it is in the background of particular features of the particular case, the guarantee to liberty has to be taken care of.
19) Instant case presents peculiar facts i.e. occurrence is of 1997, detention of accused except accused Major Parera in custody in connection with the case for a prolonged period, commencement of the trial in near future not insight, it is only in view of the same circumstance, other accused including Abdul Rashid Sofi have been enlarged on bail. In case of Abdul Rashid Sofi, grant of interim bail is controlled by a condition i.e. he has to be at large until trial commences, as is clear from the order passed on his petition dated 28.7.2009. When the other accused are enjoying liberty from the year 2009 and the petitioner Mohammad Sultan (an approver) is still in custody on the notion that he has to be in custody until trial terminates, the position of his ailment coupled with the requirement of plantation of pacemaker, has an attractive valid appeal to seek concession of bail.
20) In the aforesaid background, exceptional circumstances exist calling upon the Court to exercise inherent powers so as to stop abuse of the process of the Court and to secure the ends of justice. In case of concession of bail is declined to the approver (petitioner), in the background of the afore-stated circumstances, that would be nothing but travesty of justice.
21) This application, as such, is allowed. Petitioner Mohammad Sultan Mir is admitted to interim bail, so shall be released on furnishing bail bonds to the tune of Rs.25,000/ to the satisfaction of Registrar Judicial and personal bond of like amount to the satisfaction of Superintendent Central Jail, Srinagar subject to following condition:
(I) The petitioner, in any manner, will not act so as to tamper with the prosecution evidence.
(II) The petitioner shall not leave the limits of Kashmir province without previous permission of the Court.
22) Application succeeds, so shall stand disposed of as above along with connected Cr.M.Ps.
(Mohammad Yaqoob Mir) Judge Srinagar 27.04.2012 Mohammad Altaf