Jammu & Kashmir High Court
Mohd Anas Through Father Abdul Latif vs Ut Of Jammu And Kashmir on 14 January, 2025
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
Sr. No. 62
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Bail App No. 304/2024
Mohd Anas through father Abdul Latif ..... Petitioner (s)
Through :- Mohd Shabir Advocate.
V/s
UT of Jammu and Kashmir .....Respondent(s)
Through :- Mr. Sumeet Bhatia G.A.
Coram: HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
ORDER
1 This is an application with a prayer for release of
applicant-accused, presently facing trial before Principal Sessions Judge Reasi,
for short trial court, in case FIR No.140/2022 for offences under Sections
363/376/109 RPC and 3/4 of the Protection of Children from Sexual Offences
Act, 2012 (POCSO Act), on bail, on the ground that he has already suffered
incarceration for about 3 years even though falsely implicated in the aforesaid
case.
2. Per contra, in the objections filed by the respondents the bail plea
has been opposed on the ground that applicant/accused is involved in a serious
offence and the bail petition presented by him before the trial court has already
been dismissed. During course of arguments, learned counsel have reiterated
the contents of petition and memo of objections.
3. I have heard learned counsel for the parties and considered the
matter.
4 It appears that on 13.05.2022 a written complaint was received by
the Police Station Katra from complainant Ram Avtar Singh Chauhan to the
effect that his minor daughter was not available at home when he returned after
paying obeisance at Mata Vaishno Devi and during the process of searches, he
came to know that she has been kidnapped by some unknown persons. On this
complaint, a case FIR No. 140/2022 for the aforesaid offences was registered.
During the course of investigation, both the accused, namely Mohd Anas and
Mohd Akram were arrested and the girl was recovered from their possession
and the offences punishable under Sections 376/109 IPC and 3/4 POCSO Act
were added. The investigation conducted ultimately culminated in institution
of the case against the accused in the court of Principal Sessions Judge, Reasi.
A bail petition was filed by the applicant on 02.09.2023 before the trial court
and the same has been dismissed vide order dated 16.10.2024 on various
grounds.
6. It is a fact that accused is involved in an anti social penal offence,
but at the same time his involvement presently is at the stage of an accusation
only though a serious one, the factum of alleged commission of
crime- disputed by petitioner’ counsel on various factual and legal pleas,
notwithstanding. Law is well settled, that in any case bail cannot be withheld as
a measure of punishment, and ordinarily with-holding it, should be an
exception only, to be involved in exceptional circumstances attending a
particular case. Nothing has been pointed out or brought on record to suggest
that the case in hand has any such exceptional feature as could justify
withholding bail, to the applicant, particularly because the applicant/accused
has already suffered incarceration for around 3 years and the case having
already been instituted, statements of the witnesses as also the statement of the
victim has been recorded which favours the applicant, there is no scope for
hampering the investigation. In view of the prolonged incarceration of
applicant, I feel his release on bail would be just fair and reasonable.
7. The Apex Court in case titled Satender Kumar Antil v. Central
Bureau of Investigation and another reported as (2022) 10 SCC 51 has laid
down certain guidelines for the courts to be followed while determining the
bail applications. The paragraphs 12 and a portion of paragraph 13 being
relevant are taken note of herein, thus:
“BAIL IS THE RULE:
12. The principle that bail is the rule and jail is the exception has
been well recognised through the repetitive pronouncements of
this Court. This again is on the touchstone of Article 21 of the
Constitution of India.This court in Nikesh Tarachand Shah v.
Union of India, (2018) 11 SCC 1, held that:
“19. In Gurbaksh Singh Sibbia v. State of Punjab [Gurbaksh
Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC
(Cri) 465], the purpose of granting bail is set out with great
felicity as follows: (SCC pp. 586-88 , paras 27-30) ’27. It is not
necessary to refer to decisions which deal with the right to
ordinary bail because that right does not furnish an exact
parallel to the right to anticipatory bail. It is, however,
interesting that as long back as in 1924 it was held by the High
Court of Calcutta in Nagendra Nath Chakravarti, In re [
Nagendra Nath Chakravarti, In re, 1923 SCC OnLine Cal 318 :
AIR 1924 Cal 476 : 1924 Cri LJ 732] , AIR pp. 479-80 that the
object of bail is to secure the attendance of the accused at the
trial, that the proper test to be applied in the solution of the
question whether bail should be granted or refused is whether it
is probable that the party will appear to take his trial and that it
is indisputable that bail is not to be withheld as a punishment. In
two other cases which, significantly, are the “Meerut Conspiracy
cases” observations are to be found regarding the right to bail
which deserve a special mention. In K.N. Joglekar v. Emperor [
K.N. Joglekar v. Emperor, 1931 SCC OnLine All 60 : AIR 1931
All 504 : 1932 Cri LJ 94] it was observed, while dealing with
Section 498 which corresponds to the present Section 439 of the
Code, that it conferred upon the Sessions Judge or the High
Court wide powers to grant bail which were not handicapped by
the restrictions in the preceding Section 497 which corresponds
to the present Section 437. It was observed by the Court that
there was no hard-and-fast rule and no inflexible principle
governing the exercise of the discretion conferred by Section 498
and that the only principle which was established was that the
discretion should be exercised judiciously. In Emperor v. H.L.
Hutchinson [Emperor v. H.L. Hutchinson, 1931 SCC OnLine All
14 : AIR 1931 All 356 : 1931 Cri LJ 1271] , AIR p. 358 it was
said that it was very unwise to make an attempt to lay down any
particular rules which will bind the High Court, having regard to
the fact that the legislature itself left the discretion of the court
unfettered. According to the High Court, the variety of cases that
may arise from time to time cannot be safely classified and it is
dangerous to make an attempt to classify the cases and to say
that in particular classes a bail may be granted but not in other
classes. It was observed that the principle to be deduced from the
various sections in the Criminal Procedure Code was that grant
of bail is the rule and refusal is the exception. An accused person
who enjoys freedom is in a much better position to look after his
case and to properly defend himself than if he were in custody.
As a presumably innocent person he is therefore entitled to
freedom and every opportunity to look after his own case. A
presumably innocent person must have his freedom to enable him
to establish his innocence. Coming nearer home, it was observed
by Krishna Iyer, J., in Gudikanti Narasimhulu v. State [Gudikanti
Narasimhulu v. State, (1978) 1 SCC 240 : 1978 SCC (Cri) 115]
that: (SCC p. 242, para’1) ‘1…. the issue [of bail] is one of
liberty, justice, public safety and burden of the public treasury,
all of which insist that a developed jurisprudence of bail is
integral to a socially sensitised judicial process. … After all,
personal liberty of an accused or convict is fundamental,
suffering lawful eclipse only in terms of “procedure established
by law”. The last four words of Article 21 are the life of that
human right.’
8 In Gurcharan Singh v. State (UT of Delhi) [ Gurcharan
Singh v. State (UT of Delhi), (1978) 1 SCC 118 : 1978 SCC (Cri) 41] it was
observed by Goswami, J., who spoke for the Court, that: (SCC p. 129, para 29)
’29. … There cannot be an inexorable formula in the matter of
granting bail. The facts and circumstances of each case will
govern the exercise of judicial discretion in granting or
cancelling bail.’
9. In AMERICAN JURISPRUDENCE (2nd, Vol. 8, p. 806, para
39), it is stated:
‘Where the granting of bail lies within the discretion of the court,
the granting or denial is regulated, to a large extent, by the facts
and circumstances of each particular case. Since the object of the
detention or imprisonment of the accused is to secure his
appearance and submission to the jurisdiction and the judgment of
the court, the primary inquiry is whether a recognizance or bond
would effect that end.’ It is thus clear that the question whether to
grant bail or not depends for its answer upon a variety of
circumstances, the cumulative effect of which must enter into the
judicial verdict. Any one single circumstance cannot be treated as
of universal validity or as necessarily justifying the grant or
refusal of bail.”
******
10. Article 21 is the Ark of the Covenant so far as the Fundamental
Rights Chapter of the Constitution is concerned. It deals with nothing less
sacrosanct than the rights of life and personal liberty of the citizens of India
and other persons. It is the only article in the Fundamental Rights Chapter
(along with Article 20) that cannot be suspended even in an emergency
[see Article 359(1) of the Constitution]. At present, Article 21 is the repository
of a vast number of substantive and procedural rights post Maneka Gandhi v.
Union of India [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] .Further
this Court in Sanjay Chandra v. CBI (2012) 1 SCC 40, has observed that:
“21. In bail applications, generally, it has been laid down from the
earliest times that the object of bail is to secure the appearance of
the accused person at his trial by reasonable amount of bail. The
object of bail is neither punitive nor preventative. Deprivation of
liberty must be considered a punishment, unless it is required to
ensure that an accused person will stand his trial when called
upon. The courts owe more than verbal respect to the principle
that punishment begins after conviction, and that every man is
deemed to be innocent until duly tried and duly found guilty.”
11 Before concluding the matter, however, I would like to observe
that I have consciously avoided consideration of the rival contentions touching
merits of the matter as the gravity of the offence that can be said to have been
committed; and other technicalities attending the matter, deserve to be left for
appreciation of the trial court. The only apprehension projected by the learned
counsel for the respondent that the accused may try to win over the prosecution
witness if bail is granted in his favour is unfounded as the learned counsel has
himself submitted that most of the prosecution witnesses have already been
examined including the victim.
12 For all that has been discussed above, the petition is allowed and
the applicant/accused is admitted to bail subject to the following conditions:
i) That he shall furnish personal bond in the amount of
Rs.50,000/- with one surety of the like amount to the satisfaction
of the trial court.
ii) That he shall appear before the trial court on each and every
date of hearing;
iii) That he shall not leave territorial limits of Union Territory of
J&K without prior permission of the trial court;
iv) That he shall also undertake not to indulge in any activity
similar to the one alleged against him.
13 In the event of violation of any of the conditions mentioned above,
the respondent may lay motion before this Court for cancellation of bail of the
petitioner.
14. The bail application shall stand disposed of on the above lines.
15. Registry shall furnish a copy of this order to the learned counsel
for the applicant and also communicate it to the trial court.
(MOKSHA KHAJURIA KAZMI)
JUDGE
Jammu 14.01.2025
Sanjeev