Maskeen Din and ors vs UT of J&K

Rajesh Sekhri, J

Petitioners, who are in custody in consequence of registration of FIR No. 193/2024 and consequent presentation of chargesheet, for offences under Sections 140/109/118(2)/189/191/238 of Bharatiya Nyaya Sanhita, 2023 (for short, “BNS”), being aggrieved of order dated 05.03.20925, passed by learned Principal Sessions Judge, Kathua [“the trial court”], vide which their bail plea came to be declined, have preferred the present petition for emancipation, primarily on the ground of false implication and prolonged incarceration.

The plea has been opposed by the respondent-UT mainly on the ground of nature and gravity of the offence alleged to have been committed by the petitioners.

Heard learned counsels for the parties and perused the record.

As factual narration would unfurl, it is recited in the final report that on 09.09.2024 at 1930 hrs, HC Anant Ram, No. 264/K along with SPO Bivore Mehra reported back at Police Post from Abroal Hospital, Gurdaspur (Punjab) after recording statement of injured, namely, Habib that on 08.09.2024 at about 1000 hrs, while he was working in the house of Makhan Din, accused Masoom Ali and Shaiya came there on a motor cycle and went away. After some time, accused Maskeen Ali, Makhnu, Din, Bawa, Maskeen and Aloo came in a car, attacked him, put him inside the car and started beating him with fists and blows. It is further alleged by the complainant that accused forcibly gave him a capsule and also took the same dose and snatched his mobile phone. After some time, he fell unconscious and accused drove him to Dinanagar (Punjab) where he was de-boarded from the car and blindfolded at some isolated place. Complainant goes on to allege that after sometime, accused persons, in furtherance of common criminal intention to kill, caught hold of him and cut his right forearm and left index finger with a sickle. It was alleged by the complainant that accused Maskeen Ali kept the forearm, severed from his body in his possession. They opened his eyes and put him in the same car and while the car was being driven rashly and negligently, it developed some fault. They stopped the car. Meanwhile, Punjab Police came there and he narrated the whole incident to the Police, whereafter accused persons fled away. He was shifted to CHC, Singu Paul, Dinanagar, from where, he was referred to Civil Hospital, Gurdaspur and later to Abroal Hospital, Batala. On the receipt of this report, the Police agency swung into action and investigation came into vogue.

The complainant/injured came to be discharged from the hospital on 11.09.2024. The petitioners came to be arrested on 16.09.2024 and investigation culminated in the presentation of chargesheet against the petitioners on 12.11.2024. They came to be charged by the trial Court on 18.01.2025, whereby they pleaded innocence and claimed trial, prompting the trial Court to ask for the prosecution evidence. Till date, prosecution has failed to examine any witness.

Bail plea of the petitioners came to be declined by the trial Court vide order dated 05.03.2025, primarily on the ground of gravity of offence and severity of punishment attached thereto. Learned trial Court is of the view that since witnesses of the prosecution including injured are yet to be examined and petitioners accused committed the crime in a most barbaric manner, therefore, they were not entitled to the discretion of bail.

A perusal of the impugned order reveals that learned trial Court was influenced by the gravity of charge and the manner in which occurrence is alleged to have been committed by the petitioners.

No doubt, the manner in which petitioners accused are alleged to have committed the occurrence is gruesome and barbaric as right forearm and left index finger of the victim were chopped off. There is no quarrel to the legal position that bail discretion, in heinous allegations and serious charges, must be exercised with due care and circumspection and ordinarily, courts, in such cases, are loath to exercise discretion of bail.

Bail or jail belongs to the blurred area of criminal justice system which largely hinges on the hunch of the Bench, otherwise called the judicial discretion. Personal liberty of a citizen is too precious a value of our constitutional system recognized under Article 21 of the Constitution. Court should take cognizance of the fact that liberty of an individual whose involvement has not been established in the commission of an offence, should not be lightly dealt with, for bail is a cardinal rule and jail is an exception.

The order granting or refusing bail must reflect a perfect balance between the conflicting interests namely, the sanctity of individual liberty and the interest of the society. The law of bails dovetails two conflicting interests, namely, on the one hand, a requirement of shielding the society from the hazards of those committing the 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. The seriousness of a charge is, no doubt, one of the relevant considerations while considering bail pleas but that is not the only test or the factor. If the same is reckoned as the only test or the factor it may tantamount to imbalancing the constitutional rights and would rather be recalibration of the scales of justice. Provisions of Cr.P.C., now BNSS, confer discretionary jurisdiction on criminal Courts to grant bail to accused pending trial or in appeal against conviction and since jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society.

It is by far a crystallized position of law that mere gravity of offence and severity of punishment is no ground for rejection of bail especially when there is nothing to suggest that if released on bail, accused is likely to abscond with a view to evade the trial and where there is no material on record to show that in the event of bail, the accused is likely to tamper with the prosecution witnesses or evidence.

Reverting to the merits, the petitioners accused already stand charged by the trial Court. They are in custody for last about seven months. Mr. Sethi, learned Senior Counsel for the petitioners has produced a certified copy of interim orders passed by the trial Court, from time to time and it reveals that complainant victim is avoiding to appear to record his statement and trial Court has issued bailable warrants to secure his presence. In these circumstances, further incarceration of the petitioners accused shall amount to travesty of justice.

Hence, present application is allowed and petitioners accused are directed to be released on bail, subject, however, to the following condition that:

i. they shall furnish a surety bond in the amount of Rs. 1.00 lac each to the satisfaction of the trial Court and a bond of personal recognizance of the like amount to the satisfaction of Superintendent of concerned jail;

ii. they shall regularly appear before the trial court without fail; and

iii. they shall not directly or indirectly make any attempt to coerce or influence the prosecution witnesses or tamper with the prosecution evidence.

Any such attempt on the part of the petitioners accused shall entail in the forfeiture of bail bonds and they will be taken into custody immediately.

Disposed of.