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Mudasir Ahmad Lone vs State Of J&K; Through Sho P/S … on 27 June, 2018

S. no. 53
Supplementary list
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
BA no. 87/2018
Date of Order: 27.06.2018

Mudasir Ahmad Lone Vs. State of JK through SHO P/S Bandipora

Coram:
Hon’ble Mr Justice M. K. Hanjura, Judge.

Appearance:

For the Petitioner(s): Mr. Ishtiyaq Ahmad Khan, Adv.
For the Respondent(s): Mr. Q. R. Shamas, Dy. AG

01. In the instant petition, the petitioner seeks bail in FIR no. 42/2018
registered against him at police station Bandipora under section
376 RPC. In the petition, it is stated that the petitioner is behind the
bars for the last two-and-a-half months and the
prosecutrix/complainant in her statement recorded under section
164-A Cr.P.C. has stated that she had a love affair with the
petitioner for the last four years and in the process they had been
physically intimate. It is also pleaded that the prosecutrix has stated
in her statement that she is wife of the petitioner and they have
performed Nikah and that she wants to live with the petitioner.

02. What needs to be stated at the outset is that the applicant filed an
application before the court of the learned Principal Sessions
Judge, Bandipora for releasing him on bail primarily, on the same
grounds as have been agitated in this application. The application
by the court below has been dismissed by an order dated
01.06.2018 of the learned Principal Sessions Judge, Bandipora,
holding that the application of the applicant is devoid of merit. It is
further stated in the order that the dismissal of the instant

BA No.87/2018 Page 1 of 6
application shall not debar the accused/applicant for filing the fresh
application in the competent court of law at any changed situation
hereafter.

03. Objections have not been filed. Learned counsel for respondents
shall be at liberty to file objections, if any, before the next date of
hearing.

04. Heard and considered.

05. Risking repetition, what requires to be repeated and reiterated here
is that the learned Principal Sessions Judge, Bandipora, has
rejected the bail application of the applicant. The question
therefore that arises for consideration at first is whether a
successive application for bail will or will not lie before this court.
The law evolved on the subject is that the jurisdiction of the
Sessions Court and the High Court to consider an application for
the grant of bail is concurrent. If the Sessions Court has rejected an
application for bail, the High Court can consider the prayer afresh
particularly when the order of the rejection of the bail is bad and
perverse on the face of it. Resort can in this behalf be had from the
law laid down in AIR 1978 SC page 179 wherein it has been held
as under:-

“17. It is significant to note that under S. 397, Cr. PC, of the new code while
the High Court and the Sessions Judge have the concurrent powers of
revision, it is expressly provided under Sub-section (3) of that section that
when an application under that section has been made by any person to the
High Court or to the Sessions Judge, no further application by the same
person shall be entertained by the other of them. This position has been
made explicitly clear under the new Code with regard to the revision when
the authorities have concurrent powers. Similar was the position under S.
435 (4), Cr. PC of the old Code with regard to concurrent revision powers of
the Sessions Judge and the District Magistrate. Although under Section 435
(1) Cr. PC. of the old Code the High Court, a Sessions Judge or a District
Magistrate had concurrent powers of revision, the High Court’s jurisdiction in
revision was left untouched. There is no provision in the new Code excluding

BA No.87/2018 Page 2 of 6
the jurisdiction of the High Court in dealing with an application under S. 439
(2) Cr. PC. to cancel bail after the Sessions Judge had been moved and an
order had been passed by him granting bail. The High Court has undoubtedly
jurisdiction to entertain the application under S. 439 (2) Cr. PC for
cancellation of bail notwithstanding that the Sessions Judge had earlier
admitted the appellants to bail. There is, therefore, no force in the
submission of Mr. Mukherjee to the contrary.”

06. Taking a cue from the law laid down above, the High Court of
Bombay in the Judgement reported in Crimes Volume 3 1987 page
363, Para No.7 of which is germane to the issue has held as
follows:-

“The above view of the learned Single Judge of the Kerala High Court
appears to me to be correct. In fact, it is now well-settled that there is no bar
whatsoever for a party to approach either the High Court or the Sessions
Court with an application for an ordinary bail made under Section 439 Cr. PC.
The power given by Section 439 to the High Court or to the Sessions Court is
an independent power and thus, when the High Court acts in the exercise of
such power it does not exercise any revisional jurisdiction, but its original
special jurisdiction to grant bail. This being so, it becomes obvious that
although under section 439 Cr. PC. concurrent jurisdiction is given to the
High Court and Sessions Court, the fact, that the Sessions Court has refused a
bail under Section 439 does not operate as a bar for the High Court
entertaining a similar application under Section 439 on the same facts and
for the same offence. However, if the choice was made by the party to move
first the High Court and the High Court has dismissed the application, then
the decorum and the hierarchy of the Courts require that if the Sessions
Court is moved with a similar application on the same fact, the said
application be dismissed. This can be inferred also from the decision of the
Supreme Court in Gurcharan Singh’s case (above).”

07. Looking at the order of the Learned Principal Sessions Judge,
Bandipora, whereby the application of the applicant for the grant of
bail in his favour has been rejected, the prosecution version is that
the prosecutrix has been subjected to rape by the petitioner.

08. The settled position of law as evolved by the Supreme Court in a
catena of judicial dictums on the subject governing the grant of bail
is that there is no strait jacket formula or settled rules for the use of
discretion but at the time of deciding the question of “bail or jail”
in non-bailable offences Court has to utilize its judicial discretion,

BA No.87/2018 Page 3 of 6
not only that as per the settled law the discretion to grant bail in
cases of non-bailable offences has to be exercised according to
rules and principle as laid down by the Code and various judicial
decisions. In bail applications, generally, it has been laid down
from the earliest times that the object of bail is to secure the
appearance of the accused person at his trial by reasonable amount
of bail. The object of bail is neither punitive nor preventative.
Deprivation of liberty must be considered a punishment, unless it
can be required to ensure that an accused person will stand his trial
when called upon. The courts owe more than verbal respect to the
principle that punishment begins after conviction, and that every
man is deemed to be innocent until duly tried and duly found
guilty. From the earliest times, it was appreciated that detention in
custody pending completion of trial could be a cause of great
hardship. From time to time, necessity demands that some un-
convicted persons should be held in custody pending trial to secure
their attendance at the trial but in such cases, `necessity’ is the
operative test. In this country, it would be quite contrary to the
concept of personal liberty enshrined in the Constitution that any
person should be punished in respect of any matter, upon which, he
has not been convicted or that in any circumstances, he should be
deprived of his liberty upon only the belief that he will tamper with
the witnesses if left at liberty, save in the most extraordinary
circumstances. Apart from the question of prevention being the
object of a refusal of bail, one must not lose sight of the fact that
any imprisonment before conviction has a substantial punitive
content and it would be improper for any Court to refuse bail as a
mark of disapproval of former conduct whether the accused has
been convicted for it or not or to refuse bail to an un-convicted

BA No.87/2018 Page 4 of 6
person for the purpose of giving him a taste of imprisonment as a
lesson.

09. The word “judicial discretion” has been very well explained by an
eminent jurist Benjamin Cardozo. In the words of Benjamin
Cardozo “The judge, even when he is free, is still not wholly free.
He is not to innovate at pleasure. He is not a knight-errant roaming
at will in pursuit of his own ideal of beauty or of goodness. He is to
draw his inspiration from consecrated principles. He is not to yield
to spasmodic sentiment, to vague and unregulated benevolence. He
is to exercise a discretion informed by tradition, methodized by
analogy, disciplined by system and subordinated to the primordial
necessity of order in the social life. Wide enough in all conscience
is the field of discretion that remains. Even so, it is useful to notice
the tart terms of Lord Camden that “the discretion of a Judge is the
law of tyrants. It is always known, it is different in different men; it
is causal, and depends upon constitution, temper and passion. In
the best, it is oftentimes caprice, in the worst, it is every vice, folly
and passion to which human nature is liable.

10. Deprivation of liberty is tantamount to punishment. The principal
that punishment begins after conviction and that every man is
deemed to be innocent unless duly tried and duly found guilty has
its application to the facts of the instant case in all the fours. The
object of the bail is to seek attendance and appearance of the
accused at the trial by a reasonable amount of bail. Bail cannot be
withheld as a means of punishment. Prison hell destroys the tender
sentiments of a person. The applicants have been languishing in the
jail for the last more than fourteen months by now. The trial of the
case has already commenced. The accused have to prepare for their

BA No.87/2018 Page 5 of 6
defence which is of an essence in a criminal trial. The discretion
has to be exercised on well based foundations of law and one
cannot gets swayed by sentiments. Temper and passion has no role
to play in exercising the discretion for the grant of bail.

11. The statement of the prosecutrix recorded under section 164-A Cr.

P.C. which forms a part of the file is that the prosecutrix has
contracted the marriage with the petitioner and she has expressed
the desire to live with her husband. She has also stated that she
indulged in sexual intercourse with the petitioner on his assertion
that he will marry her meaning thereby that the act was consensual
and to crown it all she has stated that they have already performed
the marriage.

12. Taking into consideration the statement of the prosecutrix and the
fact that the petitioner has undergone long incarceration, the
petitioner is admitted to bail in FIR no. 42/2018 registered against
him in police station Bandipora. He shall execute a personal bond
to the tune of Rs.50,000/- with a surety of the like amount before
the Incharge jail wherever he is lodged at the moment. The
petitioner shall not tamper with the prosecution evidence and shall
produce himself before the Investigating Officer if and when he is
directed to do so. This order shall remain in force till next date of
listing before the bench.

13. List on 27th July, 2018.

(M. K. Hanjura)
Judge
SRINAGAR
27.6.2018
N Ahmad

BA No.87/2018 Page 6 of 6

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