Haji Mohd. Jaffer vs State of J. and K.

Janak Raj Kotwal, J.—Petitioners are facing trial in the court of learned Sessions Judge, Kargil for offences under Sections 302, 307, 201,

120-B and 435 RPC arising in FIR No. 25/2011 of P.S. Kargil. Occurrence, as narrated in the charge sheet, copy whereof is on the file, and

reflected in the impugned order, is horrendous indeed. To say briefly, the petitioners first got set ablaze a Government building and then set ablaze

the two persons whom they had engaged for setting ablaze the building. One of them succumbed to the burn injuries. Petitioners applied for bail

before the trial court at a stage when evidence of only six prosecution witnesses was recorded. Trial court, however, rejected the prayer.

Petitioners approached this court in Application No. 97/2013 u/s 561-A Cr.P.C. and Bail Application No. 30/2013. Both the applications came

to be dismissed by this Court by a composite order passed on 9.7.2013, however, keeping it open for the petitioners to lay motion before the trial

court for amendment of charge and release on bail. Petitioners moved the trial court for bail. The trial court by its order dated 26.11.2013

dismissed the application.

This petition invokes inherent jurisdiction of this Court u/s 561-A Cr.P.C. to quash order dated 26.11.2013 passed by the learned trial court.

Besides, petitioners seek their release on bail.

Heard. I have perused the record.

The impugned order on perusal would show that the learned trial court has though correctly taken note of the horrendous nature of the alleged

occurrence and referred to law in quite some detail but what seems to have lost proper attention of the learned trial Judge is the main ground on

which bail was sought. The main ground obviously was lack of evidence to connect the petitioners with the commission of alleged offence(s). It

was contended on behalf of the petitioners that evidence of nineteen out of twenty eight prosecution witnesses has been recorded by the trial court

and they have not supported the prosecution case against them. In was in particular contended that the star prosecution witness, Abdul Hussain,

has turned hostile. Learned judge, without referring to the evidence has, rejected the plea with a brief observation that 'the court is not to shift and

weigh the evidence. Even otherwise the evidence in the case has not yet completed and which has come before court does not absolve the

accused fully from the charge. Learned court therefore, dismissed the application holding that the case cannot be said to be a case of 'no evidence'

also 'keeping in view the general impact of the horrific offence' committed by the petitioners on the society.

The manner in which the prayer for bail has been rejected and application dismissed, would show that the learned Judge has rather shown inapt

approach in exercising the discretionary jurisdiction of the court and dealing with delicate issue involving individual liberty on one hand and a larger

interest of society on the other. Whereas the nature of accusation, severity of punishment, general public interest in granting or refusing bail and

apprehension of the accused tempering with the evidence are some of the important criteria in determination of a prayer for bail, the nature of the

evidence against the accused proposed by the investigator/prosecution is nevertheless important. Court should neither grant nor refuse bail without

having due regard to the evidence against the accused. Accusation/severity of punishment howsoever grave, nature of evidence cannot be given

less importance because it is the evidence that can unveil the shield of innocence, which law has provided to a person accused of offence.

To take a view that in considering the application for bail, court has not to appreciate or 'shift and weigh' evidence is not a correct view in law.

To take such a view is to avoid consideration of the evidence against the accused, which though is an important factor in determination of the

prayer for bail. The bail court rather is duty bound to accord consideration, besides other factors, to the evidence produced/collected against the

accused and expressly set out reasons for granting or refusing bail. This duty becomes more advantageous and meaningful when the bail is sought

during trial because by that time the entire proposed evidence is before the court and some of it might have been recorded on oath. Court has the

benefit of comparing the evidence and considering the recorded evidence in context of the evidence yet to be recorded and also had the occasion

of noticing the demeanor of the witnesses examined by that time.

What is, however, required of the bail court and is important is that while passing orders on bail applications, the court should avoid making

detailed examination of evidence and elaborate discussion on the merits of the case. Law in this regard has been laid down by the Supreme Court

in Niranjan Singh v. Prabhakar Rajaram Kharote, AIR 1980 SC 785. But that would not mean that courts can grant or refuse bail with a stroke of

pen by a non-speaking order Supreme Court, in Puran Vs. Rambilas and Another etc. etc., , while referring to the advice given in Niranjan Singh's

case (supra) has observed in para 7 of the reporting that giving reasons is different from discussing merits or demerits. At the stage of granting bail

a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. The Supreme Court has further

observed that 'that did not mean that whilst granting bail some reasons for prima facie concluding why bail was granted need not have to be

indicated'.

Contextually, it is useful to refer to Gajanand Agarwal v. State of Orissa and Ors. 2007 AIR SCW 2857 and Lokesh Singh Vs. State of U.P.

and Another, . Supreme Court in these cases has reiterated that while dealing with an application for bail, there is need to indicate in the order,

reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence.

Grant or refusal of bail in non bailable offences is discretion of the court but this discretionary jurisdiction is to be exercised with great care and

not casually and in cavalier manner. Order passed by the bail court must expressly indicate reasons for granting or refusing bail. A reference to

facts and evidence proposed/recorded is inevitable but care must be taken to safeguard against prejudicing the case at the time of trial. It must be

paramount in the mind of a judge dealing with a bail application, particularly where an accused is alleged to have committed serious offence(s), that

ha is discharging the solemn duty of balancing the sanctity of individual liberty enshrined under the Constitution on one hand and interest of the

society and public loath against crime on the other. Supreme Court in Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others, has

observed;

The society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State. The order granting or

refusing bail must reflect perfect balance between the conflicting interests, namely sanctity of individual liberty and the interest of the society. The

Law of bails dovetails two conflicting interests namely on the one hand, the requirement of shielding the society from the hazards of those

committing crimes and potentiality of repeating the same crime while on bail and on the other hand absolute adherence of the fundamental principle

of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty.

Scrutiny of evidence needs to be done keeping in mind the distinction between the standard to be adopted for evaluating the evidence for

proving the charge and that for examining the evidence for limited purpose of drawing prima facie opinion for releasing the accused on bail. There

is a category of offences, like one u/s 302 RPC, in which section 497(1) Cr.P.C. imposes complete bar against bail. In such cases it needs to be

determined by the bail court whether the evidence recorded at the trial or that proposed to be recorded would lead one to believe that accused is

guilty of the offence punishable with death or imprisonment for life or not.

Order passed by the trial court does not indicate that the learned judge had scrutinised the recorded evidence and that to be recorded. To say

that the evidence recorded by the court does not absolve the accused (petitioners) is too scanty and legally not correct. If the evidence is found to

absolve the accused, question arising would be why the accused be not acquitted and not only that why he be not released on bail. Evidence in

consideration of a bail application needs to be scrutinised for limited purpose as set out above and to form an opinion whether bail be granted or

refused.

Such scrutiny though can be done by this court but it is apt and essential that this job is left to the trial court, which is seized of the entire record

and is in position to compare entire evidence and material.

For all that said and discussed above, this petition is disposed of with an observation that the dismissal of earlier bail application(s) by the

learned trial court notwithstanding, petitioners may apply afresh and the trial court shall accord consideration to the application having regard to the

evidence recorded/proposed to be recorded and dispose of the application in light of the observations made above by a speaking order indicating

the reasons for granting or refusing the bail. A copy of this order be sent to the trial court for information.