The Jammu & Kashmir and Ladakh High Court denied bail to a man accused of lynching a Deputy SP of 3rd Battalion Security, while observing that his act has put humanity and spirit of Kashmiriyat to shame.
The Division bench of Chief Justice Pankaj Mithal and Justice Sanjay Dhar passed this order on a Criminal Appeal filed by Peerzada Mohammad Waseem.
Through the medium of appeal under Section 21(3) of the National Investigation Agency Act, appellant has challenged the order dated May 12, 2021 passed by Additional Sessions Judge, TADA/POTA, Srinagar, whereby bail application of the appellant has been dismissed.
The facts of the case are that on June 22, 2017, while the holy festival of Shabe Qadar was being observed in Jamia Masjid, Nowhatta, the appellant and the co-accused raised inflammatory slogans against the Government of India and they caught hold of deceased Mohammad Ayoub Pandit Deputy SP of 3rd Battalion Security, who had been deployed in the area to supervise the manpower for access control at Jamia Masjid on the occasion of Shabe Qadar.
The deceased was beaten up, dragged and lynched to death by the mob, of which the appellant was a part. His pistol was also snatched and the dead body was dragged and left at Batagali Nowhatta. Police registered FIR for offences under Section 302, 148, 149, 392, 341 RPC read with 13 of Unlawful Activities (Prevention) Act and investigation of the case was set into motion. After conducting investigation of the case, the challan was presented before the trial court against 20 accused.
“It appears that after recording statements of some of the prosecution witnesses, the appellant moved an application before the trial court for grant of bail on the ground that material prosecution witnesses to the extent of his case have turned hostile and, as such, he deserves to be enlarged on bail,”
-the Court noted.
The bail application was dismissed by the trial court on September 16, 2020. The appellant preferred an appeal against the said order before the High Court, set aside the order of the trial court through its February 26, 2021 order, and gave liberty to the appellant to move a fresh application before the trial court.
Also Read: Awash in Apathy: Nothing learnt from 2013 cloudburst, hydropower marches on in Uttarakhand
The primary ground on which the appeal has been filed by the appellant is that the witnesses who have deposed about his involvement during investigation of the case, have been examined by the trial court, but they have turned hostile and that they have not supported the case of the prosecution.
It has been urged that even if the remaining prosecution witnesses support the prosecution case and make their statements in line with the statements made by these witnesses during the investigation of the case, still the appellant cannot be convicted. On these grounds, it is contended that the appellant deserves to be enlarged on bail.
It has been contended by the Counsel for the appellant that the appellant was not named in the FIR but he has been falsely implicated later on and a supplementary challan against him was filed by the Investigating Officer.
According to the Counsel, the material witnesses cited in the supplementary challan who have deposed about the involvement of the appellant during investigation of the case have already been examined and they have turned hostile.
The Counsel further submitted that the appellant has made an application under Section 272 of the J&K CrPC before the trial court stating therein that the appellant admits whole of the remaining prosecution evidence but in spite of that, the trial court, has, without determining the prima facie involvement or otherwise of the appellant on the basis of the evidence already led by the prosecution and the remaining evidence which has been recorded during investigation of the case, rejected the bail application.
The Court said that the contention of Counsel for the appellant that the appellant was impeached as an accused at the time of filing of supplementary challan and he was not an accused in the original challan is factually incorrect. In the first charge sheet itself filed by the Investigating Agency before the trial court, the name of appellant is shown in indicating therein that the said accused has not been arrested.
The Court further noted that the record further shows that the contention of the counsel for the appellant that he has moved an application before the trial court in terms of Section 272 of J&K Cr. P. C, wherein he has admitted the remaining part of the evidence which the prosecution proposes to lead in support of its case, is also factually incorrect. We could not lay our hands on any such application on the trial court record nor there is any interim order of the trial court evidencing the said fact.
At the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merit of the case cannot be undertaken. What is the effect of statements of hostile witnesses would be a moot point to be decided during the course of trial of the main case and cannot be decided during bail proceedings, the Court said.
The Court observed that the mere fact that material witnesses have turned hostile, in our opinion, by itself is not sufficient to grant bail because of the simple reason that this Court cannot imagine what would happen till the disposal of the case. If the Court were to accept or to rely upon the evidence of the prosecution recorded by the trial court, it would amount to appreciation of evidence on record which is impermissible in these proceedings.
Also Read: SC directs release of man suffering from paranoid schizophrenia convicted for father’s murder
The court stated that, what would be the effect of prosecution evidence led so far, is an issue which cannot be determined by this Court and the same has to be determined by the learned trial court at the conclusion of trial. Even the Investigating Officer, who is a star witness in the case, is yet to be examined and without examining him, this Court cannot even frame a prima facie opinion as to the merits of the prosecution case. It is a settled law that conviction of an accused can be based even on the statements of hostile witnesses and the Investigating Officer provided the same inspire confidence. This question can be determined only by the trial court and not by this Court in these proceedings.
Apart from the above, we also need to take into account the gravity of the offence and the circumstances in which the offence has been committed by the accused including the appellant herein. It is a case where a young police officer has been lynched to death by a mob of miscreants of which the appellant is alleged to be a part, thereby putting the humanity in general and spirit of Kashmiriyat in particular to shame. Bail in such heinous and serious offences cannot be granted as a matter of course, the Court said while dismissing the petition.