Muhammad Ayoub Dar vs Ut Of J&K And Others

Sanjay Dhar, J

Bail App No.126/2022

The petitioner has filed the instant application seeking bail in a case arising out of FIR No.125/1996 for offences under Section 302, 307, 325, 341, 34 RPC and 7/27 Arms Act registered with Police Station, Sumbal, which is stated to be pending before the Court of Principal Sessions Judge, Bandipora. According to the petitioner, he has served in Indian Army and has been falsely implicated in the aforesaid case. It has been submitted that there is no incriminating material against the petitioner and none of the witnesses has deposed anything incriminating against him. It has been also submitted that the respondents are protracting the trial which has added to the prejudice and agony of the petitioner.

The respondents have filed their objections in which it has been submitted that the charge sheet in the instant case was filed before the trial court on 25.09.2018 in the absence of the petitioner and he was declared as a proclaimed offender. It has been submitted that pursuant to the general warrant of arrest issued by the trial court, the petitioner was arrested and produced before the court below. It has been contended that the petitioner is involved in a serious offence relating to murder of seven persons. It has been further submitted that the trial of the case is yet to be completed and in case the petitioner is admitted to bail, he may influence the witnesses.

I have heard learned counsel for the parties and perused the material on record.

During the course of arguments, learned counsel for the respondents has raised a preliminary objection with regard to maintainability of the bail application on the ground that the petitioner has not approached the trial court for grant of bail prior to filing of the instant bail application. To this learned counsel for the petitioner has submitted that this Court has got concurrent jurisdiction for grant of bail under Section 439 of Cr. P. C and because the petitioner is an Army Personnel, as such, it would be highly risky for his counsel to file a bail application before the trial court.

Although Section 439 of the Cr. P. C gives concurrent jurisdiction to the High Court and Sessions Court to consider a bail application of an accused yet, as a matter of ordinary practice, High Court does not entertain application of a person under Section 439 of the Cr. P. C unless the said person has approached and exhausted the remedy before the Court of first instance. It is only in exceptional cases and in special circumstances the High Court may entertain an application under Section 439 of Cr. P. C without insisting upon filing of such application before the Court of Session in the first instance.

The aforesaid position of law has been reiterated and reaffirmed by several High Courts including this High Court in a number of cases. It would be apt to refer to some of the cases which include Smt. Savitri Samso vs. State of Karnataka, 2001 Cri.L.J 3164, Smt. Manisha Neema vs. State of M. P, 2003(2) MP.L.J 587, Gopal Goyal vs. State of NCT of Delhi (Bail Application No.1565/2012 decided on 19th of November, 2012) and Mohammad Yousuf Lone & anr. Vs. Government of J&K (Bail App No.34/2023 decided on 06.04.2023).

In the instant case, the petitioner has approached this Court directly without exhausting the remedy before the learned Sessions Judge, Bandipora. The contention of learned counsel for the petitioner that because the petitioner is an Army Personnel and, as such, his counsel would not be able to file a bail application before the trial court is without any substance for the reason that the petitioner is already represented by a counsel before the trial court who has, admittedly, been appearing on his behalf and he has even cross-examined the prosecution witnesses. In fact, the petitioner has annexed with his bail application certified true copies of statements of prosecution witnesses, which clearly shows that the petitioner’s counsel has cross-examined the said witnesses. If the petitioner’s counsel before the trial court does not feel threatened in cross-examination of the prosecution witnesses, I fail to understand as to how he is feeling threatened in moving a bail application before the said court. The contention of learned counsel for the petitioner is, therefore, without any substance.

I do not find any compelling circumstances for the petitioner to approach this Court directly without exhausting his remedy before the trial court. Therefore, without expressing any opinion on the merits of the case, the petition is dismissed with liberty to the petitioner to approach the Court of learned Session Judge, Bandipora, with an application for grant of bail, if he so desires. If and when such an application is made before the said Court, the same shall be dealt with and disposed of on its own merits in accordance with law.

TrP(Crl) No.50/2022

List this petition along with CRM(M) No.80/2023 on 29.05.2023.