The central legal point established in the judgment is the importance of evidence in bail applications and the duty of the bail court to consider the evidence against the accused, providing reasons for granting or refusing bail.

1. Petitioners are facing trial in the court of learned Sessions Judge, Kargil for offences under Sections 302, 307, 201, 120-B and 435 RPC arising in FIR No.25/2011 of P. S. Kargil. Occurrence, as narrated in the charge sheet, copy whereof is on the file, and reflected in the impugned order, is horrendous indeed. To say briefly, the petitioners first got set ablaze a Government building and then set ablaze the two persons whom they had engaged for setting ablaze the building. One of them succumbed to the burn injuries.

2. Petitioners applied for bail before the trial court at a stage when evidence of only six prosecution witnesses was recorded. Trial court, however, rejected the prayer. Petitioners approached this court in Application No. 97/2013 under section 561-A Cr. P. C. and Bail Application No. 30/2013. Both the applications came to be dismissed by this Court by a composite order passed on 9. 7. 2013, however, keeping it open for the petitioners to lay motion before the trial court for amendment of charge and release on bail. Petitioners moved the trial court for bail. The trial court by its order dated 26. 11. 2013 dismissed the application

3. This petition invokes inherent jurisdiction of this Court under Section 561-A Cr. P. C. to quash order dated 26.11.2013 passed by the learned trial court. Besides, petitioners seek their release on bail.

4. Heard. I have perused the record.

5. The impugned order on perusal would show that the learned trial court has though correctly taken note of the horrendous nature of the alleged occurrence and referred to law in quite some detail but what seems to have lost proper attention of the learned trial Judge is the main ground on which bail was sought. The main ground obviously was lack of evidence to connect the petitioners with the commission of alleged offences. It was contended on behalf of the petitioners that evidence of nineteen out of twenty eight prosecution witnesses has been recorded by the trial court and they have not supported the prosecution case against them. In was in particular contended that the star prosecution witness, Abdul Hussain, has turned hostile. Learned judge, without referring to the evidence has, rejected the plea with a brief observation that `the court is not to shift and weigh the evidence. Even otherwise the evidence in the case has not yet completed and which has come before court does not absolve the accused fully from the charge'. Learned court therefore, dismissed the application holding that the case cannot be said to be a case of `no evidence' also `keeping in view the general impact of the horrific offence' committed by the petitioners on the society.

6. The manner in which the prayer for bail has been rejected and application dismissed, would show that the learned Judge has rather shown inapt approach in exercising the discretionary jurisdiction of the court and dealing with delicate issue involving individual liberty on one hand and a larger interest of society on the other. Whereas the nature of accusation, severity of punishment, general public interest in granting or refusing bail and apprehension of the accused tempering with the evidence are some of the important criteria in determination of a prayer for bail, the nature of the evidence against the accused proposed by the investigator/prosecution is nevertheless important. Court should neither grant nor refuse bail without having due regard to the evidence against the accused. Accusation/severity of punishment howsoever grave, nature of evidence cannot be given less importance because it is the evidence that can unveil the shield of innocence, which law has provided to a person accused of offence.

7. To take a view that in considering the application for bail, court has not to appreciate or `shift and weigh' evidence is not a correct view in law. To take such a view is to avoid consideration of the evidence against the accused, which though is an important factor in determination of the pray

Click Here to Read the rest of this document