Mohammad Rafiq vs State Of J&K And Others

Vinod Chatterji Koul, J

Order dated 31.10.2018, passed by learned Sessions Judge, Poonch (for short “Trial Courtâ€​) granting bail in favour of respondent no.4 in a case

titled „State vs. Razia Begum‟, who alongwith others, who is facing trial under Sections 302/307/147/148/447/325/323 RPC in FIR No.14/2011, has

been challenged in this Revision Petition filed under Section 561-A of the Code of Criminal Procedure (of erstwhile J&K Cr.P.C.), precisely on the

ground that the said respondent has committed serious offences and she absconded herself during the trial of the case for which proceedings under

Section 512 Cr PC have been initiated against her and after having absconded she made a dramatic appearance by surrendering before the Court on

13.10.2007 and the entire prosecution evidence stand recorded. She after having surrendered before the court filed application for grant of bail and the

Trial Court, while acting in a casual manner and without giving proper reason, admitted her to bail by invoking the provisions of jurisdiction under

Section 497 and 498 Cr.P.C.

According to the learned counsel for the petitioner, miscarriage of justice has been caused by admitting accused/respondent no.4 to bail and the

jurisdiction exercised by the Trial Court is neither fair nor proper. A descending order is stated to have been passed by the Trial Court without having

considered the gravity of offences and charge for which she was facing trial. The said respondent is said to have denied the arrest for long six year

and after the prosecution evidence was over, she surrendered before the court and the Trial Court admitted her to bail without there being any

sufficient reason warranting the Trial Court to grant her bail in the case.

Heard learned counsel appearing for the petitioner as well as counsel for the State and perused the record on the file.

Razia Begum alongwith other accused were booked in case FIR No.14 of 2011 for commission of offences punishable under Sections302, 307, 147,

148, 447, 325, 323RPC.

The investigation of the case culminated against the accused including respondent Razia Begum. As per the record, Razia Begum could not be

arrested and, accordingly, proceedings under Section 512 Cr.P.C. were initiated against her. The Trial Court proceeded with the trial of the case and

the evidence of all accused had been examined including the material placed on record and the case is at final stage.

According to petitioner, evidence had already been completed and after recording prosecution evidence against accused, proceedings under Section

512 Cr. PC had been initiated. She surrendered before the Court on 13.01.2017 and thereafter made an application for bail. Learned Sessions Judge,

Poonch after having considered the record on file observed that the witnesses examined in the case have not stated anything against her and observed

that the trial court admitted her to bail vide order dated 31.10.2018. Respondent no.4 is on bail since then. It is stated by the learned counsel that the

case has not been finally disposed of.

In the above background, it may be mentioned here that Section 497 of Cr.PC (erstwhile State of J&K) provides that the bail may be taken in case

of non bailable offences. It reads as under:

“When any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer-

in-charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear

reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life:

Provided that the Court may direct that any person under the age of sixteen years of any woman or any sick or infirm person accused of such an

offence be released on bail.

Provided further that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient

ground for refusing to grant bail if he is otherwise entitled to be released on bail and given an undertaking that he shall comply with such directions as

may be given by the Court.

If it appears to such office or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for

believing that the accused has committed a non bailable offence, but that there are sufficient grounds for further inquiry into his guilt the accused shall,

pending such inquiry be released on bail, or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his

appearance as hereinafter provided.

2-a) When a person accused or suspected of the commission of an offence punishable with imprisonment which, may extend to seven year or mor or

of an offence under Chapter VI, Chapter XVI or Chapter XVII of the State Ranbir Penal Code, 1989, or abetment of, or conspiracy or attempt to

commit, any such offence, is released on bail under sub-section (1), the court may impose, any condition which the Court considers necessary â€

(a) in order to ensure that such person shall attend in accordance with the condition of the bond executed under this Chapter; or

(b) in order to ensure that …………..

(c) otherwise in the interest of justice.

An officer or a Court releasing any person on bail under sub-section (1) or sub section (2) shall record in writing his or its reasons for so doing.

3-a) If, in any case triable by a Magistrate, the trial of a person accused of any ……………

4 If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgement is delivered, the Court is of

opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in

custody, on the execution by him of a bond without sureties for his appearance to hear judgment deliveredâ€​.

Section 497, as quoted above, says that when any person, accused or suspected of commission of any non-bailable offence, is arrested or detained

without any warrant by police or brought before a court, he may be released on bail and in the event, there are reasonable grounds for believing that

he has been guilty of an offence punishable with death or life imprisonment, he shall not be released on bail. Second proviso to Subsection (1) of

Section 497, however, provides that mere fact that accused may be required for being identified by witnesses during investigation, shall not be a

sufficient ground to refuse bail, if accused is otherwise entitled to be released on bail. It is clear from the Subsection 4 of Section 497 that if the Court

is of the opinion that there are reasonable grounds for believing that accused is not guilty of any offence, accused be released, if he is in custody.

Here in this case, the Trial Court admitted accused to bail, specifically after observing that the witnesses examined have not involved her in that

case. Since none of the witnesses, as is coming to fore from perusal of the record, have supported prosecution case so as to involve the accused with

the commission of offences referred above, therefore, it was appropriate for the court to grant bail. Reliance in this regard is fitting to be placed on a

judgement rendered in the case of Tarlok Chand Mahajan v. State, 2005(3) JKJ 486, in which it has been said that it is settled proposition of law that

real question is whether there are reasonable grounds for believing that a person is guilty of offence, depends upon what evidence is offered by the

prosecution to prove the charge against him. While reaching such a conclusion, the court must consider the nature and character of evidence against

him.

Having regard to the record on the file and after hearing learned counsel for the parties, I did not find any ground in this revision petition,

warranting this court to interfere with the order of Trial court in admitting respondent no.4 to bail. There is no illegality in the order passed by the trial

court, as such, the order of the trial court is upheld.

In view of the observations and discussion made hereinabove, this revision petition is dismissed along with connected CM(s). Interim direction, if

any, shall stand vacated.

Trial Court record, if summoned/received, be sent down along with copy of this order.