- (1.)BOTH these criminal revisions are against the orders dated: 16.07.1998 and 19.09.1998 passed by the Sessions Judge, Anantnag granting bail to the accused facing trial u/s 302 RPC.
(2.)FACTS of the case are briefly as follows: - Charge sheet under Sections 302,307, 148,336 and 149 RPC against 15 persons was produced by the police on 26.07.1997. Charges under Section 302/34, 323, 148, 341 and 336 RPC were framed against A -1 to A -4. By order dated: 11.08.1997 Sessions Judge Anantnag framed charges u/s 341, 336, 323 and 148 RPC against A -5 to A -l 5. After framing the charges, the learned Sessions Judge while rejecting the bail application on behalf of A -l to A -4 admitted A -5 to A -15 to bail on furnishing surety of Rs.50,000/ -. After sometime, A -1 to A -4 who have been charged u/s 302 RPC also applied for grant of bail. However, vide order dated: 16.07.1998 the court released A -2 to A -4 on bail while A -l was denied bail. Relevant portion of order dated: 16.07.1998 reads as under: - " Since the trial of the case is going on and the prosecution evidence is under way, it would not be prudent to comment upon the quality of evidence existing on the file because that may one way or the other prejudice any of the parties and probably determine the future course of trial. At the same time the contention of defence counsel also cannot be lightly brushed aside except for the first accused Nazir Ahmad Bhat in whose case the substance of defence argument does not appear to be applicable for the moment. In addition to what has been said, it would be appropriate to notice that as per charge framed against first four accused who are presently in custody only the first accused Nazir Ahmad Bhat is charged with having used the alleged weapon of offence i.e. axe while the remaining three have been roped in under Section 34 for having shared the common intention of the commission of offence as alleged with the first accused. On this aspect also the defence counsel has phi pointed the wanting nature of the prosecution evidence which could not be effectively rebutted by the Ld.P.P. in view of the records of the case. Under that circumstanctial background the accused have presently completed seventeen months in custody and the list of prosecution witnesses which runs into as many as 35 is not likely to be explained within immediate nature. That being so, the argument of the prosecution that the bail plea should wait till prosecution witnesses are examined, appears to be slightly misplaced because if accepted that may will amount to an undesirably prolonging the agony of accused 2,3 and 4 in relation to whom the plea and argument of learned defence counsel appears to have quite some substance." It appears A -4 again applied for bail by order dated: 19.09.1993 the same was allowed by observing as under: - "In all this circumstantial backdrop arises that question of bail for the first accused. The argument that materials on record do sufficiently indicate that he may not be ultimately found to be guilty of the offence u/s 302 under which he is charged cannot presently be weighed or assessed in the absolute terms that might prejudice the case of either of the parties. At the same time contentions advanced by defence and supportive materials invoked from the record available on the file cannot be undervalued no can it be lightly brushed aside. In my opinion the overall impact of what has been canvassed at the bar and which by and large finds support from the records to particular extent appears to be sufficient to constitute plausible material for considering the bail plea in favour of the accused. Coupled with that, is the fact that the accused has been the only earning member of his family which consitutes his wife and a grown -up daughter and in his absence the family is not only suffering from economic hardship but is also exposed to social vagries due to lack of proper care.
(3.)MR .Attar learned Additional Advocate General argued that the grounds on which bail has been granted are foreign to the scope of Section 497 Cr.P.C. Moreover, the observation of the learned Sessions Judge about the culpability of accused , it is argued, is not only premature, but will prejudice the prosecution case. Moreover, the order dated: 19.09.1998, argued Mr.Attar amounts to review of the order dated: 16.07.1997 and thus without jurisdiction. Mr.Ganai learned counsel appearing for the accused while controverting the argument advanced by Mr.Attar contended that no ground is made out for cancellation of the bail. According to him once bail is granted to an accused. it could be cancelled only on the ground that they are either tampering the evidence or their remaining at large is not in the interest of justice. In support of this, he placed reliance on the decision of the Supreme Court in Bashir vs. State of Haryana AIR 1978 SC 55. It is settled law that grant of bail in non -bailable offence is the rule and refusal an exception. However, Section 497 Cr.P.C. itself makes an exception with respect to the person charged with the offence punishable with death or imprisonment for life. Sub -Section (1) of Section 497 and the proviso reads as under: - "497. When bail may be taken in ca se of non -bailable offence;(l) when any person accused of (or suspected of commission of) any non -bailable offence is arrested or detained without warrant by an officer -in -charge of a police station, or appears or 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 imprisonmane for life; Provided that the court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail", Under this Section a person shall not released if there appear reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life. This, however, is subject to the proviso that even such person can be released on bail if he is under the age of 16 years or is a woman or is sick or infirm. None of the accused have been released on bail on any of the aforesaid conditions. So the accused have not been released on bail in terms of the proviso.
Let us now consider whether the trial court was justified in its conclusion that three of the accused No.2 to A -4 are entitlede to released on bail. The learned Sessions Judge may be unwittingly, but quite erroneously order to justify the order impugned opined that charge against A -4 is more grave as compared to A -2 to A -4 who have been charged under Section 302 read with Section 34 of the Penal Code. However, punishment in both cases being death or life imprisonment, there is no distinction between the accused who gave the fatal blow and those who facilitated the commission of cirme. This, therefore,could not be the ground to grant bail to the accused charged with murder. Besides, this aspect of the case had been considered at the time of framing of the charge when they were cfharged with the aid of Section 34 RPC, the court acted illegally and quite improperly while making this observation to justify the bail order.