Srinagar Sept 10 (ILNS) The Jammu & Kashmir and Ladakh High Court recently denied bail to a man accused of lynching a Deputy S.P. of 3rd Battalion Security noting that his act has put humanity and spirit of Kashmiriyat to shame.
The Division bench of Chief Justice Pankaj Mithal and Justice Sanjay Dhar while hearing a Criminal Appeal filed by Peerzada Mohammad Waseem observed, “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, Bail in such heinous and serious offences cannot be granted as a matter of course.
The Court said, 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 It is a case where a young police officer has been lynched to death by a mob of miscreants thereby putting the humanity in general and spirit of Kashmiriyat in particular to shame.
The case pertains to an incident of 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. They caught hold of deceased Mohammad Ayoub Pandit Dy. S. P. 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. The pistol of the deceased was also snatched and the dead body was dragged and the appellant left from 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.
The appellant challenged the May 12, 2021 order, passed by Additional Sessions Judge, TADA/POTA, Srinagar, in which his bail application was dismissed.
The Court noted that, 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 bail application was dismissed by the trial court on September 16, 2020. The appellant filed an appeal in the High Court against the trial court order. On February 26, 2021, the order of trial court was set aside and the appellant was given liberty to move a fresh application before the trial court.
The primary ground on which the appellant filed the appeal is that all the witnesses who deposed against him have turned hostile, as they have not supported the case of the prosecution.
The appellant urged that even if the remaining prosecution witnesses supported the investigating agency, even then he cannot be convicted, so he be enlarged on bail.
It has been contended by 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 have already been examined and they have turned hostile.
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, by itself is not sufficient to grant bail because this Court cannot imagine what would happen till the disposal of the case.
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 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./ILNS/AP/SNG