Jammu & Kashmir High Court - Srinagar Bench
Rameez Ahmad Mir vs State Through Senior Additional ... on 2 June, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
BA No. 106/2017
Date of Order: 02.06.2018
Rameez Ahmad Mir
Vs.
State through Senior Additional Advocate General, Advocate General Office
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge
Appearance:
For petitioner(s): Mr M. Ashraf Wani, Advocate
For respondent(s): Mr Mehraj-ud-Din Bhat, Dy. AG.
i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
1. In this application, the applicant/accused has craved the indulgence of this Court in admitting him to bail for the commission of offences under Sections 147, 148, 149, 336, 332, 307, 392, 427 RPC, 13 ULA (P) Act and 3 PSS Act, on the grounds, inter alia, that he was detained by the police authorities without any rhyme or reason whatsoever and was lodged in Police Station, D. H. Pora, where a case bearing FIR No. 104/2016 for the commission of the aforesaid offences was registered against him. He moved an application for bail before the learned Sessions Judge, Kulgam, and the learned Sessions Judge by his order dated 22.12.2017, directed that the application of the applicant is bereft of any merit and substance and, therefore, the same is rejected.
2. It is stated in the application that the offences levelled against the applicant are non-bailable ones. The report sought from the Police Station indicates that the name of the applicant does not figure in the aforesaid FIR. The accused was working as a Sweeper in the Government Middle School, Kounsaral. He is the sole bread earner of his family comprising of his old aged mother and father besides four unmarried sisters. The mother of the accused is suffering from 50% BA No. 106/2017 Page 1 of 9 disability. The accused is a peace loving citizen of the State. It is also pleaded in the application that the trial Court has failed to appreciate the facts and the circumstances of the case and the legal position governing the law of bails in the right perspective. The findings recorded by the trial Court in rejecting the bail, are contrary to the legal position evolved on the subject. The accused/applicant has been languishing in the jail for the last more than five months. The investigation of the case is almost complete and his further detention in the case will not serve any purpose. It will amount to pre-trial detention which is not only against the concept of liberty, guaranteed in terms of Article 21 of the Constitution of India but has other consequences as well. The offence in which the accused/applicant has been arrested, does not carry the punishment of death or life imprisonment. It is only in cases where the punishment provided be death or imprisonment for life that bail can be withheld and in all other cases grant of bail is the rule and its refusal an exception.
3. The State has resisted and controverted the application of the applicant on the grounds that on 09.07.2016, startling inputs were received from a reliable source that an unruly mob set the building housing the Police Station D.H. Pora on fire. The unruly mob was headed by one Mohd Rafiq Dar S/o Khazar Mohd Dar R/o H. M. Gung, D. H. Pora etc. (total 32 in number). The unruly mob was armed with stones, sticks, petrol bombs and were shouting slogans against the State and the Union of India. They started pelting stones on the court building situated at D.H. Pora. They hurled petrol bombs on it, due to which the building along with the records caught fire and all the records were completely gutted and reduced to ashes. The unruly mob attacked the Police Personnel who were guarding the Court building, resulting in injuries to them. The Police Personnel guarding the Court building saved their arms-ammunition from getting looted by the unruly mob. Thereafter, the unruly mob attacked the residential quarter/guard of the learned Judicial Magistrate Ist Class which was situated nearby and set it on fire. Besides the mob attacked the Police Personnel who BA No. 106/2017 Page 2 of 9 were guarding the residential quarter and forcibly snatched all their weapons alongwith ammunition. On receipt of the information, a case under FIR No. 104/2016, came to be registered triggering inquest in the matter at Police Station D. H. Pora. Consequently, the investigation was set in motion. The statements of the witnesses, were recorded under section 161 Cr. PC and in addition the statement of witnesses' under Section 164-A Cr. PC, were also recorded. During the course of the investigation of the case, some accused persons who were involved were arrested and all the snatched weapons (damaged) without ammunition were recovered from them. The accused persons were later on bailed out by the orders of the Court. During the course of the investigation as per the statements recorded under Section 164-A Cr. PC of one SGCT Riyaz Ahmad No. 311/Kgm revealed that one Rayees Ahmad Mir S/o Mohammad Ayoub Mir R/o Kounsarbal was also heading the unruly mob and he had attacked the said SGCT with a knife and snatched his weapon. During the investigation, the search of the accused namely Rayees Ahmad Mir, was carried out and it was found that the actual name of the accused was Rameez Ahamd Mir S/o Mohd Rafiq Mir R/o Kounsarbal (the applicant in this application) and in this regard the said accused was informed to attend Police Station D. H. Pora on 12.12.2017 in presence of Executive Magistrate D. H. Pora. His identification parade was conducted. During identification parade, the witness namely SGCT Riyaz Ahmad No. 311/Kgmm identified the accused person namely Rameez Ahmad Mir, who had not only attacked the SGCT Riyaz Ahmad No. 311/Kgm but had also snatched his weapon. In this regard, test identification parade was conducted formally in presence of the executive Magistrate D. H. Pora and the identification test form was prepared duly witnessed/singed by the Executive Magistrate. The accused was lodged in District jail Anantnag. It is important to mention here that the applicant/ accused has already approached the Court of Principal Sessions Judge, Kulgam, for seeking bail. However, the Court vide its order dated 22.12.2017 has rejected BA No. 106/2017 Page 3 of 9 the same. The applicant in involved in a very heinous offences which are against the security and sovereignty of the State and the grant of bail in favour of the applicant at this stage is not sustainable. In the event of bail, there is every possibility that the accused/applicant will influence the other witnesses and will turn the case in his favour. There are reasonable grounds for believing that the accusation against the accused is prima facie true. The application of the applicant cannot be considered in light of the fact that the involvement of the accused/applicant has surfaced in a crime that has put the security of the State at a peril. It is prima facie established by the Investigating Agency that the applicant was involved in attacking the SGCT Riyaz Ahmad No. 311/Kgm and snatched his weapon. The investigation is at a crucial stage. The process of collecting further material and evidence to buttress the involvement of the accused is moving on.
4. Heard and considered.
5. Before adverting to the merits of the controversy, it will be profitable to quote and reproduce the relevant provisions of law under the shade and cover, of which the accused has been taken into the custody. Section 13 of the Unlawful Activities (Prevention) Act, running under the head "punishment for unlawful, activities" reads ad under:
1. Whoever--
(a) Takes part in or commits, or
(b) advocates, abets, advices or incites the commission of, any unlawful activity, shall be punishable with imprisonment for a term which may extend to seven years and shall also be liable to fine.
Section 18 provides the punishment for conspiracy etc. and it is detailed below:
Whoever conspires or attempts to commit, or advocates, abets, advices or incites or knowingly facilitates the commission of a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.BA No. 106/2017 Page 4 of 9
Section 43 (D) of the Act which is inserted in the Statute, brings within its amplitude the provisions that are required to be followed while determining the question of the grant of bail in favour of a person accused of the commission of an offence under the Act. It reads as under:-
[43D. Modified application of certain provisions of the Code.--(1) Notwithstanding anything contained in the Code or any other law, every offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of clause (c) of section 2 of the Code, and "cognizable case" as defined in that clause shall be construed accordingly.
(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2),--
(a) the references to "fifteen days", "ninety days" and "sixty days", wherever they occur, shall be construed as references to "thirty days", "ninety days" and "ninety days" respectively; and
(b) after the proviso, the following provisos shall be inserted, namely:--
"Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days:
Provided also that if the police officer making the investigation under this Act, requests, for the purposes of investigation, for police custody from judicial custody of any person in judicial custody, he shall file an affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody.".
(3) Section 268 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that--
(a) the reference in sub-section (1) thereof--
(i) to "the State Government" shall be construed as a reference to "the Central Government or the State Government",
(ii) to "order of the State Government" shall be construed as a reference to "order of the Central Government or the State Government, as the case may be"; and
(b) the reference in sub-section (2) thereof, to "the State Government"
shall be construed as a reference to "the Central Government or the State Government, as the case may be".
(4) Nothing in section 438 of the Code shall apply in relation to any case Involving the arrest of any person accused of having committed an offence punishable under this Act.
(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such BA No. 106/2017 Page 5 of 9 release: Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.
(6) The restrictions on granting of bail specified in sub-section (5) is in addition to the restrictions under the Code or any other lw for the time being in force on granting of bail.
(7) Notwithstanding anything contained in sub-sections (5) and (6), no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country unauthorisedly or illegally except in very exceptional circumstances and for reasons to be recorded in writing.]
6. The aim and object of the insertion of Section 43 (D) in the Statute appears to be that the public order is not derailed. On the face of the said provision, the age old axioms and the maxims of the law of bails that the grant of bail is a rule and its refusal is an exception or bail and not jail, do not hold good in a case like the present one provided that the court comes to the conclusion that there are reasonable grounds to believe that the accusation leveled against the accused is prima facie true. The bar created under Section 43 (D) has to be applied both in vigor and rigor to such a case while considering the application for the grant of bail.
7. The stringent promulgation of Section 43(D) in ULA(P) Act, has to be seen and scanned from the perspective of the deep concern shown by the legislature owing to spiraling terrorist violence that has spread its tentacles across the length and breadth of the country, more particularly the State of Jammu & Kashmir that has witnessed the terrorist violence for the last three decades approximately by now which has led to a huge loss of human lives. Societal calm cannot be allowed to be sacrificed at the altar of vandalism by the anti- social elements.
8. The case diary is a sequel to the fact that there are reasonable grounds to believe that the allegations/acquisitions leveled against the accused are prima facie credible and plausible and that the investigating agency is in the process of collecting further evidence to scan and analyze the involvement of the accused BA No. 106/2017 Page 6 of 9 in the commission of the crime imputed to him. Section 43(D) of the Act, as reproduced hereinbefore, applies to the instant application in all the fours and, therefore, the application of the applicant/ accused is liable to be rejected.
9. The order of learned Sessions Judge, Kulgam, is lucid, luminous and clear. The learned Sessions Judge has placed explicit reliance on the law laid down in the cases of Vinayak Sen v. State of Chhattisgarh reported in 2007 Cr. LJ 4736, Parvain Bhai Kashi Ram Bhai Patil v. State of Gujrat reported in AIR 2010 SC 3511 and State of UP v. Amarnath reported in 2005 (8) SCC 21 in carving out a case for the rejection of the bail application of the applicant. However, it may be added that in the law laid down in the case of Union of India Vs Ikram Khan & Ors reported in AIR 2000 SC 3397, the Apex Court quashed the order of bail granted in favour of the accused by the lower court that had overlooked the application of the rigor of section 37 of the NDPS Act, in a case relating to the recovery of commercial quantity of contraband from the erring accused. In Kartar Singh's case, which applies to the instant case in all the fours, the Apex Court of the Country while expressing anguish over the crimes that the terrorists perpetuate upon innocent citizens held as under;
"The country has been in the firm grip of spiraling terrorist violence and is caught between deadly pangs of disruptive activities. Apart from many skirmishes in various parts of the country, there were countless serious and horrendous events engulfing many cities with blood bath, firing, looting, mad killing even without sparing women and children and reducing those areas into a graveyard, which brutal atrocities have rocked and shocked the whole nation. Deplorably determined youth, lured by hard-core criminals and underground extremists and attracted by the ideology of terrorism are indulging in committing serious crimes against the humanity."
10. In Mohammad Navas's case, this High Court evolved the norms required for considering an application for the grant of bail in favour of a person involved in terrorist activities and these are delineated below:-
"Terrorism is an evil affecting the life and liberty of peace loving people. Terrorism has no barriers, it may strike anybody anytime, any amount of BA No. 106/2017 Page 7 of 9 precautionary measures and security arraignments may prove futile to combat terrorism. Fundamental rights to individual liberty is certainly valuable .But when it is pitted against the life and liberty of the people at large, it becomes insignificant. Terrorism effects the growth of the nation. The resources of the nation have to be utilized to combat terrorism: it could be utilized in better ways for the betterment of the people. Offences against individuals are to be distinguished from offences affecting nation and people at large. Parameters to be adopted in the matter of considering the pleas of bail would also be different in these cases. A strict approach in the later category of cases is justified. Sympathy has no rule in dealing with such cases.
11. Looking at the application of the applicant from another perspective, what can be said, is that the applicant has neither pleaded anywhere nor has he satisfied this court that there has been any change in the circumstances of the case from the date of the order of the rejection of the bail passed by the Trial Court till such time that this application has been moved before this Court. It is well settled law that no successive application for bail can be allowed/ entertained unless and until there has been a change in the circumstances of the case or that the order is per se bad and perverse on the face of it or that it is without jurisdiction. No doubt, the principle of res-judicata does not have its application to the bail applications but the Court has to peep deep to see whether there has been any perceptible change in the circumstances of the case and in case it is not found to be so the filing of a successive application will lead to a bad precedent. An order rejecting an application of bail would not per-se-close the doors of the applicant in moving another application on a subsequent occasion but the condition precedent is that there should be some fresh material and further developments in the case as will impel and actuate the Court to consider the successive application for bail. There is no legal bar in entertaining the subsequent application if it is pointed out that there has been a change of substantial nature in the facts and circumstances of the case since the date of BA No. 106/2017 Page 8 of 9 passing the earlier order. Nothing to substantiate so has been stated in the application on hand.
12. In view of the preceding analysis, there appears to be no merit and substance in the bail application of the applicant. The same entails dismissal and is, accordingly, dismissed. Interim directions, if any, in force shall stand vacated. The applicant, however, is not precluded from moving an application for bail before the trial Court on the facts that may be available to him and in case any such application is filed that shall be considered on its merits.
13. Case diary is returned to the learned Deputy Advocate General representing the respondent State.
14. Registry to send a copy of this order to the Learned Trial Court for information.
(M. K. Hanjura) Judge Srinagar 02.06.2018 "Manzoor"
BA No. 106/2017 Page 9 of 9