Gulzar Ahmad Nadaf & Ors @APPELLANT@Hash State Through Police Station Bandipora

Order dated 25.07.2018 passed by the learned Chief Judicial Magistrate, Bandipora in an application for grant of bail(for short impugned order)is assailed in terms of the instant revision petition, while the prayer is being also made for admitting the petitioners to bail in case FIR No. 57/2018 P/S Bandipora under Sections 420, 468 RPC registered against them.

It appears from the perusal of the petition that the learned Chief Judicial Magistrate, Bandipora, while dismissing the successive bail application vide order dated 25.07.2018 made certain observations, which read as,„....Admittedly in case of non-bailable offences not carrying thesentence of death or of an imprisonment for life in alternative, the courthas got discretion in respect of bail and the sum and substance of the governing principles regarding exercise of discretion is that bail is a rule and its denial an exception, where there is no material on record suggestive of the fact that the accused if admitted to bail will jump over the concession of the same and will tamper with the prosecution witnesses. The personal liberty of an accused is guaranteed under Article 21 of the Constitution of the Country but the same can be refused to him in accordance with the procedure established under law as per the mandate of the Article 22 of the Constitution. The right to liberty of an individual needs to be balanced against the collective conscience of the whole society and social interests deserve to be preferred over the individual interests. Hon‟ble Apex Court and various other authoritative Hon‟ble courts of the country have from time to laid down the following guidelines/governing principles which are to be kept in minds while considering a bail application:-

i) The judicial discretion must be exercised with the utmost care and circumspection;

ii) That the court must duly consider the nature and the circumstances of the case including:

a) Reasonable apprehension of the witnesses being tampered;

b) Investigation being hampered or

c) The judicial process being impeded or subverted.

iii) The liberty of an individual just be balanced against the larger interests of the society and the State;

iv) The court must weigh in the judicial scales, pros and cons varying from case to case all along bearing in mind two paramount considerations viz:

a) Grant of bail quo an offence punishable with death or imprisonment for life is an exception and not the rule;

b) The court at this stage is not conducting a preliminary trial but only seeking whether there is a case to go for trial.

v) The nature of the charge is the vital factor, the nature of evidence is also pertinent, the punishment to which the party may be liable also bears upon the matter and the likelihood of the application interfering with the witnesses or otherwise polluting the course of justice,

vi) The facts and circumstances of the case play a predominate role.

Learned Chief Judicial Magistrate further observed that it isnow amply clear from the recent judgments of the Hon‟ble Apex Courtand the authoritative High Courts of the country on the subject that aMagistrate or court at the time of disposing of a bail application has not to focus exclusively on one or more aspects but instead has to keep in its mind the cumulative effect of the number of guiding factors including the nature and circumstances of the case, reasonable apprehension of the witnesses being tampered, investigation being hampered, judicial process being impeded or subverted, collective interests of the State and the society, character of the accused and his antecedents and the circumstances under which the crime was committed.‟

Learned Chief Judicial Magistrate made further observations as:-

"In the backdrop of the facts and circumstances of the case, considering the character of the accused, I am of the considered opinion that as rightly apprehended by the prosecution, there is every apprehension that accused may misuse the concession of bail, if granted in their favour by tampering with prosecution witnesses. Therefore, in such a situation, I am of the considered opinion that the accused persons are not entitled for concession of bail at this stage. Instant successive bail application also seems to be devoid of any merit as there is sufficient material on the record which shows involvement of other persons in the commission of offences."

On notice, learned GA submitted the reply in the case, wherein it is unfurled as under:

That on 08.04.2018 the complainant namely Gh. Mohi ud din Lone R/o Aythmulla Bandipora approached with a written compliant to SHO Police Station Bandipora alleging therein that the accused persons namely Javid Ahmad Bhat S/o Ab. Aziz Bhat R/o Tulbagh Ganderbal; Gulzar Ahmad Nadaf S/o Gh. Hassan Nadaf R/o Nusoo Bandipora; and Hilal Ahmad Khan S/o Ab. Ahad Khan R/o Agrikalan Magam have shown him a donor certificate at Bandipora in the name of Nageena Akhter W/o Mohd Iqbal Teeli R/o Pandach Ganderbal and in the said donor certificate at the place of Mohd Iqbal Teeli the husband of said Nageena Akhter, the photograph of complainant is affixed giving the impression that the complianant is Mohd Iqbal Teeli instead of Gh. Mohi ud din Lone and by illegally affixing the photograph of complainant, accused persons managed a relationship donor certificate by committing fraud upon the office of Additional Deputy Commissioner, Ganderbal and some other offices on the basis of which the accused persons intend to get the complainant outside State in order to remove his kidney. The accused persons provided one Photostat copy of the said certificate/order issued from the Additional Deputy Commissioner, Ganderbal to the complainant in which the photographs of complainant and said Mst. Nageena were affixed as husband and wife which established that the accused persons by way of cheating complainant in getting his photographs and prepared the forged documents in order to get the kidney of complainant removed illegally.

That on receiving the complaint case FIR No. 57/2018 under Sections 420, 468 RPC has been registered in Police Station Bandipora and the investigation commenced and on the identification of complainant the site plan was prepared and the statements of witnesses were recorded. During the course of investigation the accused persons were arrested from Humhama Budgam to the effect of which a proper arrest memo was prepared investigation, statement of witnesses and the other evidence available offences under Section 420, 468 RPC were established against accused persons.

That on 03.03.2018, the court of CJM Bandipora announced an order while deciding a bail application titled as Gulzar Ahmad Nadaf and others Vs. SHO Police Station Bandipora and has directed the Senior Superintendent of Police Bandipora to constitute a special investigation team(SIT) to investigate the above referred case.

That while receiving the aforementioned order, a special investigation team headed by Dy.SP Bandipora was constituted.

That while taking over the charge of investigation by the Dy.SP Bandipora, the complainant Gh.Mohi ud din Lone was brought before the court of CJM Bandipora for recording his statement under Section 164-A Cr.PC and as per the statement of the complainant offence under Sections 120-B and 506 RPC were also added against the accused persons. During the course of investigation one Imtiyaz Ahmad Dar S/o Mohammad Shafi Dar R/o Bandipora was found to have also been approached by the above named accused persons for arranging a donor who will donate his kidney for his wife through illegal means. The said person was also called and produced before the court of learned CJM, Bandipora for recording his statement under Section 164-A Cr.PC. Beside, during the course of investigation statements of some other witnesses were also recorded under Section 161 Cr.PC and as per these statements offences under Sections 420, 468, 120-B, 471, 201 and 506 RPC have got corroborated and established against the accused persons who were running an illegal organ transplant racket and were planning to sell the organs of the complainant and other persons for hefty considerations.

That during the course of investigation, besides offences under Sections 420, 468, 120-B, 506, 471 RPC offences under Sections 18 & 19 of J&K Transplantation of Human Organs Act were also found established against the accused persons.

That the investigation for offences under Section 18 & 19 of J&K Transplantation of Human Organs Act, 1997 can only be done by appropriate authority as mandated by Section 13 of the said Act which shall file a complaint before the competent court as laid down in Section 22 of the J&K Transplantation of Human Organs Act accordingly. As such, Director, SKIMS, who is the chairperson of appropriate authority under Section 13 of the Act was intimated vide office letter dated 07.06.2018 and requested to proceed as warranted under Sections 13 and 22 of the said Act.

That the expert opinion with respect to some documents has been sought from FSL during the course of investigation, which is still awaited.

That the investigation was concluded as challan against the above named accused persons for offences under Sections 420, 468, 471, 201, 120-B, 506 RPC and accordingly charge sheet was presented before the court of learned CJM Bandipora on 06.06.2018 pending expert opinion.

No delay has been caused by the investigation agency during the course of investigation of the said case as the statement of witnesses has been recorded in a stipulated time as envisaged under Cr.PC. It is submitted that there arises no question of initiation of false and frivolous case against the petitioners.

Attested copies of the record were called from the court of learned Chief Judicial Magistrate, which reveal that the final report having been submitted on 06.06.2018 in which the petitioners herein have been held prima facie guilty of commission of offences under Sections 420, 468 , 471, 201, 120-B & 506 RPC. The substances of the charge for which the petitioners-accused are to be tried, according to the investing agency, are as supra.

After perusal of the record, what emerges is that the court of learned Chief Judicial Magistrate, Bandipora, had dealt with the pertinent issue relating to grant of bail and passed well reasoned order dated 25.07.2018, whereby concern shown that investigation needs not to be made mechanically, but all the facets of the matter need to be gone into by it i.e. Investigating agency, cannot be said to be misplaced. Case requires an in-depth probe, including about the past antecedents of accused and how they got in contact with complainant; how they had procured his photograph; and whether Mst. Nageena and another lady actually needed transplant; whether there were any privies to the above accusation in any hospital(s) or Revenue Department. I, as such, do not find any scope of need to displace follow up made in pursuance of said order. Learned counsel for the petitioners, however, while arguing the instant case and contending that the order passed regarding investigation of the case was bad, has relied on the judgment of the Hon'ble Supreme Court reported in 2015 CRI.L.J. 4538 (Supreme Court), Chandra Babu alias Moses Vs. State through Inspector of Police & Ors.

Impugned order, however, does not suggest the direction having been passed either for fresh investigation or same being made by any agency other than police. The principles of law referred by learned counsel, therefore, would not be applicable to the instant case and so there is no ground to reverse the direction so passed.

It is also the submission of learned counsel for the petitioners that the petitioners are incarcerating in jail for a pretty long time and same has propensity of punishing them before actually been tried for commission of offences referred herein supra. It is also being canvassed that the investigating agency having taken sufficient time to take investigation to logical conclusion the detention of accused would not advance cause of justice. Emphasis has also been laid on the innocence of the petitioners and their right, as such, being entitled to the concession of bail nonetheless the fact that the allegations having been levelled against them may be serious in nature. The past conduct of the petitioners does not suggest, according to them, they have committed any offence previously and so court had to lend assistance in their favour and order their release pending trial, is also being submitted.

On the other hand learned GA submitted that having regard to the seriousness of the allegations, the Court is required to turn down the prayer made in terms of the instant petition and the submissions made at bar. It is also his submission that the individual liberty is to lean in favour of the collective interests of the society whenever the allegation of commission of offences are serious in nature.

Considered the rival arguments.

Having regard to the fact that the investigating agency has taken reasonable opportunity to probe the allegations levelled against the petitioners and also to examine some other facets, of which reference is found herein supra, I am of the opinion that it would be expedient in the ends of justice to admit the petitioners to interim bail. The fact remains that the petitioners have been in custody since 08.04.2018. It is their right to prepare their defence. Presumption of their innocence has not to be ignored until they are proved guilty. The Investigating agency may have to collect further material while making further investigation but that would not dislodge the presumption of innocence. The trial, if any, having commenced would not stand in the way of submission of additional report regarding further investigation made in the matter. Accordingly, the petitioners are admitted to interim bail till next date of hearing subject to furnishing bail by two sureties in the amount of Rs.1.00 lac each, to the satisfaction of learned trial Judge, conditioned that the petitioners:-

a) shall appear in person before the trial court on each and every date of hearing;

b) shall not leave the territory of the Valley without prior permission of the trial court;

c) shall not tamper with the prosecution evidence; and

d) shall not change their place of residence until permitted by the trial court.

List again on 28.02.2019. In the meanwhile, the investigating agency/respondents would be free to submit further status of the case, which may be required to be taken into consideration for final disposal of the instant matter. The court may be approached even earlier in case there is need for re-visiting the instant order for any reason.