ASHOK KUMAR BINNY Vs. STATE
LAWS(J&K)-1982-4-5
HIGH COURT OF JAMMU AND KASHMIR
Decided on April 23,1982

ASHOK KUMAR BINNY Appellant
VERSUS
STATE Respondents

JUDGEMENT

- (1.) ASHOK Kumar alias Binny, styeld by his learned counsel Shri Bhim Singh, as a political activist and described by Shri Salaria the learned Advocate General, as a desperate criminal having failed to obtain bail from the trial court in a challan case under sec. 307/353/324 R. P. C. read with Section 4/27 Indian Arms Act, pending trial against him, has moved this court seeking his release on bail in the said case.
(2.) THE background in which this application has been filed, needs a notice at the very threshold. A case F.I R. No. 773 of 1977 under sec 307/354/ 324 R. P. C. read with Sec. 4/27 of the Indian Arms Act, is pending trial against the applicant in the court of Sessions Judge, Jammu. A perusal of the interim orders from the file of the trial court show that the case was registered against the applicant by the police as early as on 13 -11 -1977 and a challan was filed in the court on 28 -11 -1977, on which date itself copies of the documents, as envisaged under Sec. 173 Cr P. C. were furnished to the applicant. The case was adjourned to 12th of December, 1977, on which date the applicant absented himself from the court. On the next date, i. e. on 27 -12 -1977, the applicant was produced in the court in custody and he was remanded to Judicial custody. The case came up on 10 -2 -1978 for recording the evidence of the prosecution witnesses and while the witnesses were present, the case had to be adjourned, at the request of the applicant, on the ground that his counsel was not available. The applicant was then admitted to bail but on the very next date i. e on 20 -4 -1978, the applicant again absented himself. His presence was directed to be secured by warrant of arrest but the applicant could not be apprehended and thus the proceedings in the case remained at a standstill. It was on account of this continued absence of the applicant that the trial could not proceed further. The learned Sessions Judge was influenced by this fact and he declined the prayer of the applicant, leading to his filing the present application.
(3.) MR . Bhim Singh, learned counsel for the applicant, has argued that the absence of the applicant from the trial court was not intentional and that the trial court failed to take that aspect into consideration. It is urged that from 15 -9 -78 to 14 -9 -79, again from 31 -5 -1980 to 14 -7 -1980 and from 29 -9 -1980 to 24 -1 -1 981 as also during 22 9 -81, the applicant remained in detention either under the J&K Public Safety Act or in connection with one or the other criminal case and as such his absence from the trial court on various dates could not be taken as circumstance against him to deny bail to him. Argued Mr. Bhim Singh that the police made no efforts to secure the presence of the applicant and to cover up its inefficiency it has created a false plea about the alleged intentional absence of the applicant from the trial court. Learned counsel has further submitted that the applicant had been released by the Supreme court on more than one occassion and that shows that detention of the applicant is malafide. Mr. S. A. Salaria, learned Advocate General has, on the other hand, submitted that assuming, though not conceding, that during the period mentioned by Shri Bhim Singh, the applicant was in detention in some case or the other there is no explanation as to why the applicant did not appear before the court on 20 -4 -1978, 17 -5 -1978, 12 -6 -1978. 1 -7 -1978, 29 -7 -1978, 9 -9 -1979, 19 -10 -78, 5 -12 -1979. 12 -5 -1980, 17 -7 -80, 2 -9 -80, 2 -3 -81, 8 -4 81, 2 -581,26 -5 -81, 1 -7 -81 and 31 -7 -81, the dates fixed in the committing court and the trial court when on his own showing, the applicant was not in detention in any jail. It is urged that the continued absence of the applicant from the court especially on the above dates clearly establishes that the applicant has abused the connession of bail granted to him, more than once and, therefore, he was not entitled to any further indulgence by this court. Mr. Salaria has further pointed out that apart from the case FIR 773 of 1977, there are a number of other criminal cases pending against the applicant and in those cases also he has been dodging the court and the police. He has, in particular, referred to FIR No. 421 of 1977 under Sec. 382/353 R. P. C. read with Sec. 4/27 of the Indian Arms Act: FIR 348 of 1978 under Sec. 353 R P. C. read with Sec. 4/27 of the Indian Arms Act, FIR No 131 of 1978 under Sec. 395 R. P. C. FIR No. 122 of 1978 under Sec. 452 R. P. C. read with Sec. 4/27 of the Indian Arms Act, FIR No. 148 of 1978 under Sec. 307/141/149 R. P. C. FIR No. 118 of 1980 under Sec 307/147/148 R. P C. No. 188 of 1980 under Sec. 307 R. P. C. Read with Sec. 4/27 of the Indian Arms Act, FIR No 63 of 1981 under Sec. 307/147/348 R. P. C. read with Sec. 4/27 of the Indian Arms Act besides some other FIRs of the years 1974, 75 and 76. It is submitted that proceedings in all these cases had come to stand still because after securing bail in most of these cases, the accused absconded and that in certain cases he had tampered with the prosecution evidence also. The learned Advocate General has submitted that not only is the applicant a desperate criminal who is involved in a number of serious cases but also that he is a compulsive absconder who is habituated to abuse the concession of bail and therefore, he required no indulgence from this court.;


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