IMITIAZ AHMAD PACHOLL Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) ORDER :- This order will dispose of the bail application filed in a criminal case pending trial in the Court of learned Additional Sessions Judge, Srinagar. The accused-petitioner stands charged under S. 302 read with Ss. 34 and 120-B, R.P.C. He is not the only accused in the case but there are two more who stand admitted to bail by the trial Court vide its order dated 31-12-1998. The applicant appears to have been tempted by such order to claim bail on the ground of parity of charges. The attempt, having proved abortive, jurisdiction of this Court is invoked under S. 498, Cr. P.C.

(2.) It is contended that the evidence produced by the prosecution during the trial is not sufficient to render the accused guilty of the offence, therefore, bail is claimed on the ground of not being guilty. The endeavour of the LC for the applicant appears to engage the Court in discovering the innocence of the accused, which is not possible because that is required at a stage when conviction or acquittal is to be recorded, for which, stage is yet to be set. At this point of time, it is the amount of probabilities, which is to be taken into consideration just to form a prima facie opinion. Thus, I am loath to sift the evidence.

(3.) It is next contended that since the Court has the power to grant bail, therefore power is required to be exercised. In this behalf, it needs to be observed that the Court has a discretionary power to admit an accused to bail but the availability of power does not mean that its exercise is permissible on mere asking. If it would be so, it is bound to amount to an arbitrary exercise of power, a situation, this Court cannot conceive of. As a corollary, availability of such power presupposes judicious exercise, thus various circumstances have to be borne in mind while taking a decision to admit the accused to bail which, inter alia, are; nature and gravity of offence; degree of punishment prescribed for such offence besides whether a reasonable ground does or does not exist for believing the guilt.