Mohd.Saleem : Sartaz Singh vs State of J & K

Petitioner, Mohd, Saleem has' filed this revision petition against the order dated 7.1.97,passed by the learned Sessions Judge, Jammu whereby

his application for being enlarged on bail was rejected. The petitioner was accused to have committed offences under sections

341,343,364,366,323/ 34 RPC and he was taken into custody on

17.6.96. The police had failed to produce the challan within a statutory period of sixty days and there after the petitioner made an applications

before the learned Chief Judicial Magistrate, Jammu where in release on bail under section 167 Cr. P.C. was claimed. During the pendency of the

application. the challan was produced on 28.9.96. be fore the said Magistrate who committed the case for trial before the learned Session Judge,

Jammu.

The learned Sessions Judge disposed of the bail application by holding that the applicant had a statutory right of being bailed out, till the challan

was produced. That after the submission of the final report, section 167 Cr.P.C. becomes inoperative and the proceedings are governed by other

relevant provisions of the code of criminal procedure.

This order has been challenged on the ground that on the nonproduction of the challan within a statutory period of 60 days, an indefeasible right

had accrued to the petitioner for being let off on bail and the denial of this right is unconstitutional and illegal on its face which requires to be

reversed in the exercise of revisional jurisdiction.

In revision petition No.86/96, the petitioner Sartaz Singh has challenged the order dated 16.10.96. passed by the learned Sessions Judge,

Jammu, where by he was charged for the commission of offences undersections 364,343,366,341/34 R.P.C. read with section 30 of the Arms

Act while, respondent No.2 was charged for the offence under sections 364,343,366,341/34 R.P.C. It is pleaded that on the basis of no evidence

charges under sections 364,343 R.P.C. read with section 30 of the Arms Act were framed and in the interest of justice, they require to be

quashed. During arguments , it was submitted that inherent jurisdiction vested under section 561A Cr. P.C. may be invoked to quash the

proceedings. The prosecution case is that the prosecutrix Dr. Kahkashan who is yound unmarried lady doctor wherivvas on her way to the

Hospital was abducted by the petitioner and respondent No.2 by dragging her forcibly out from a Matador from the busy ""Green Belt"" locality of

Jammu city in the presence of copassangers at a gun point. They had wrongfully confined the prosecutrix by taking her to Chandigarh, Nahin

(H.P), Muzaffar Nagar (U.P) and finally to Delhi from where she was recovered.

In bail Application No.8/97, the petitioner. Sartaz singh has sought grant of release by invoking the provisions of section 498 Cr.P.C. It is

pleaded that petitioner is an orphan and he has falsely been implicated for the commission of offences arisen under FIR No. 263/96 registered in

Police Station, Gandhinagar, Jammu. He owns moveable and immoveable properties in Jammu District and there is nobody to look after them. He

was arrested during the 3rd week of June, 1996 and is in the lock up without any trial of the case. His earlier bail application made to the learned

Sessions Judge, Jammu was rejected on 7.1.97 (vide annexure PA) without any basis. The finding of the Judge that it was not in the interest of the

public at large as well as apprehension of tampering of the prosecution evidence and fleeing of the petitioner were only figments of imagination and

something aerie.

Heard the arguments.

All the above stated above petitions shall be disposed of by this common order.

In Criminal Revision Petitions No. 71 97. Mr. Anil Sethi, L/C for the petitioner has contended that petitioner had claimed the relief when the

Investigating Agency had failed to produce the challan within the statutory period of 60 days. This was not the fault of the petitioner that the petition

was not decided in time till the challan was allowed to be filed in the court and subsequently the petition dismissed. Indefeasible right had accrued

in favour of the petitioner under sub clause 2(a) of section 167 Cr.P.C.and the order of refusal of bail is thus illegal and requires to be setaside.

This argument lost its validity when the apex court in the case of Sanjay Dutt Vs. State (1995 Cr.Law Journal 477) had held that the custody of the

accused after the challan has been filed , is not governed by section 167 Cr.P.C. but by different provisions of the code of Criminal Procedure .

Applying the ratio of the said case it emerges that the right of the petitioner accrued to him under subclause 2 of section 167 had extinguished when

the challan was produced. The learned Sessions Judge Jammu has rightly held that after the challan was produced the grant or refusal of the bail

was governed by other provisions of the Act. There is thus found no illegality in the impugned order. Accordingly, the revision petition is dismissed.

In Criminal Revision Petition No.86/ 96, the quashing of the charge framed under the provision of sections 364 and 343 RPC read with section

30 of the Arms Act, is sought. The inherent jurisdiction vested under section 561A Cr. P.C.is sought in order to achieve the object.

The learned counsel for the petitioner has contended that in order to save the abuse of the process of the court and to meet the ends of justice,

charge framed u/s 364 RPC requires to be quashed because there is not even an iota of evidence which shows that prosecutrix Dr. Kehkashan

was kidnapped or abducted in order to murder her. Equally there is no evidence which shows that she was so disposed of as to be put in danger

of being murdered the so called kidnapping or abduction remained within the penumbral zone that she was only to be compelled for marriage and

the charges under those circumstances should have been under section 366 R.P.C.simplicities. This argument of the learned counsel is an argument

of despair as not been borne out by the record.

After making a reference to the prosecution evidence. it is found that the driver of the Matador in question namely, Roop Lai has stated that

the petitioner was carrying a gun in his hands while his companion boarded the Matador and forcibly ejected the prosecutrix who was sitting there.

Her wailing and cries had no effect when she was being dragged. At that time, the petitioner had hurled threats to shoot with gun any of the

passengers of the Matador or amongst the wayfarers or even riders of an oncoming scooter who dared to intervene.

It is in the evidence of the prosecutrix that petitioner Saleem after calling her had names had dragged and had also pulled her hairs. The

petitioner herein had been brandishing the gun and threatening everybody who showed interest in the incident, Petitioner Saleem had tied a scurff

around her neck and place a knife there. He had also administered beating to her. Petitioner was driving Maruti carat highspeed. The prosecutrix

had vomited blood. She has also stated that the petitioner had at one point of time planned to kill her with the gun but this idea was abandoned

when an idea struck that for this act the father of respondent Saleem would be punished. They had also tried to get some poisonous medicine in

order to poison her but the object could not be achieved as the medicine was not available. Finally, they took her to Moulvi (Ufail Ahmed) in order

to enter forcible marriage but the sterling quality of the character of the witness thwarted their evil designs as he informed the police and got them

apprehended. In the presence of such evidence, how it can be argued that the prosecutrix was not disposed of as to be put in danger of being

murdered. The prosecutrix remained kidnapped or abducted for a period of more than three days and how it can be said that the charge under

section 343 R.P.C. is not sustainable. There is consistent evidence that the petitioner had used the gun in the commission of the offence of

kidnapping or abduction and on no basis it can be argued that there was no violation of the terms and the conditions of the license and no offence

committed under the Arms Act.12. It is settled law that inherent jurisdiction of the court can be exercised to quash proceedings in a proper case

either to prevent the abuse of the process of the court or otherwise to secure the ends of justice. Ordinarily, criminal proceedings instituted against

the accused person must be tried under the provisions of the code, and the High Court would be reluctant to interfere with the said proceedings at

an interlocutory stage. This case does not fall under the category where the allegations made against the accused persons do constitute an offence

alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge.

Rather, the evidence on record on its face value constitute the alleged offences and no case is made out for invoking the inherent jurisdiction. In the

result, the petition is found merit less which is dismissed.

In petition No. 8/97. bail is sought in favour of the petitioner, Sartaz Singh on the grounds that he is an orphan and as such has to look after his

movable and immovable properties. There is no possibility of his fleeing. His continued custody is not in public interest and amounts to deprivation

of his fundamental right.

The state counsel has vehemently opposed the petition by arguing that the petitioner along with his companion (Saleem) abducted lady doctor,

Kahkashan who is a respectable member of the society from a matador in the broad day light after dragging her at a gun point in the Posh locality

of Gandhinagar of Jammu city when she was on her way to attend the office. She was publically beaten and threatened. Even the passengers of the

Matador and a scooter rider who reached there were threatened to be killed. She was taken to Himachal, Punjab and Haryana, Muradabad and

finally to Delhi, where a plan for entering into forcible marriage was made, Had the above said Moulvi not shown sagacity of laying information to

the Police, the prosecutrix would have been married against her will and her marital life completely ruined. The damage which has been caused to

the mind and reputation of the prosecutrix is irreparable and the petitioner does not deserve and leniency of the grant of bail who is a slur on the

name of orderly society.

After considering the respective contentions of the counsel for the parties, it has to be borne in mind that while considering the question of grant

or refusal of bail, the courts generally take into consideration:

(a) the nature of the charge;

(b) the nature of the accusation;

(c) the nature of evidence in support of the accusation;

d) the severity of the punishment to which the accused may be subjected;

(e) the danger of the accused absuing the concession of bail by way of absconding or tampering with the evidence;

(f) health, age and sex of the accused;

(g) the social position or status of the accused and complainant party, and last but not the least;

(h) whether the grant of bail would thwart the course of justice. x

Adverting to the facts of the case. the charge against the accused is very serious and in case the offence under section 364 RPC is proved,

there can be the possibility of awarding the punishment for life or rigorous imprisonment for a term which may extend up to 10 years, Similarly, the

offence under section 366 R.P.C. is also punishable for a term which may extend up to 10 years. the nature of the accusations is of fiendish and

diabolical nature. The petitioner and his companion namely, & Saleem are stated to have acted in a manner ' which is heart wrenching and sends

shivers down to the spine of everybody who is peace loving and has a concern with the rule of law.

The social position of the prosecutrix is that at the time of the incident, she was at the threshhold of medical career, which is considered as one

of the most noble profession and commands respect in the society. She has a long way to establish herself in the profession and settle in life. A

victim of such like incident has an experience which shakes the foundations of the life and the effects are in long terms. Traumatic experience

generally alters the behaviour and values of life. The very presence of the perpetrators of crime haunts the victim with endless fear. In the backdrop

of all these facts and the circumstances; the grant of bail would thwart the course of justice and refusal will serve the larger interests of the orderly

society. In this view of the matter, the petitioner has failed to make out a case for being enlarged on bail. Similarly, the coaccused also stands on

the same footing. In the result, the petition is dismissed) The office is directed to send back the record of the trial court with a direction to the

learned sessions Judge, Jammu to proceed ahead with the trial of the case as expeditiously.