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2020 Supreme(J&K) 235
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sanjay Dhar, J.
(Through Virtual Mode)
Pankaj Sharma
Versus
Union Territory of J&K and Anr.
Bail App No.152/2020 and CrlM Nos.878, 1412 & 1413 of 2020
Decided on 2-12-2020
For the Petitioner(s):Mr. K.S. Johal, Sr. Advocate with Mr. Karman Singh Johal, Advocate
For the Respondent(s): Mr. Aseem Sawhney, AAG
Headnote:
Indian Penal Code,1860 - Section 121- Criminal Procedure Code,1973 - Section 437 – Investigation – FIR - Petitioner that he has been arrested Police Jammu in aforesaid FIR - It is averred that after completion of investigation of case has been filed before Court of Principal Sessions Judge Jammu on It is contended that a perusal of reveals that a false frivolous and vexatious case has been lodged against petitioner and offences for which he has been booked are not made out from a plain reading - It is averred that petitioner had moved an application for grant of bail before learned trial Court but same was rejected vide order -According to petitioner learned trial Court while rejecting bail application of petitioner has not appreciated correct position of law and has not considered facts and circumstances in right perspective - It is also averred that antecedents of petitioner are clean and he has been roped in a false case - Lastly it has been averred that petitioner will abide by conditions of bail in case he is enlarged on bail –Held petitioner has relied upon explanation of expression waging war given by Supreme Court in case (supra) to contend that unless re is insurrection or force accompanying with insurrection a person cannot be stated to have waged war against government petitioner is alleged to have hobnobbed with ISI of Pakistan and passed on photographs of vital installations and troops movement - It is an open secret that Country particularly Union Territory of J&K is facing onslaught of terrorist activities from neighboring country which is orchestrated by ISI of Pakistan - providing of vital information and photographs to intelligence agency of an enemy country to my mind is nothing but waging war against country and it also falls squarely within definition of offence punishable Section of Enemy Agents Ordinance investigation in case not complete and only part of investigation has been completed in consequence whereof charge-sheet has been laid against petitioner before trial Court - It is clearly stated in charge-sheet that co-accused in this case who belong to Dubai Abu Dhabi and Maharashtra are yet be arrested and interrogated - Investigating Agency has submitted that after arrest and interrogation supplementary charge-sheet will be produced before Court petitioner is granted bail at this stage it is definitely going to hamper investigation of case and in fact it may derail investigation of case - Petition dismissed
Judgment
Sanjay Dhar, J.—Through the medium of instant petition the petitioner is seeking bail in FIR No.78/2020 for offences under Section 121 IPC and Section 3 of Enemy Agents Ordinance Svt. 2005.
2. It is the case of the petitioner that he has been arrested on 04.03.2020 at Police Nakka, Sabzi Mandi, Main Gate, Narwal, Jammu in the aforesaid FIR. It is further averred that after completion of the investigation of the case, challan has been filed before the Court of Principal Sessions Judge, Jammu on 02.06.2020. It is contended that a perusal of the challan reveals that a false, frivolous and vexatious case has been lodged against the petitioner and the offences for which he has been booked are not made out from a plain reading of the challan.
3. It is further averred that the petitioner had moved an application for grant of bail before the learned trial Court but the same was rejected vide order dated 14.08.2020. According to the petitioner, the learned trial Court, while rejecting the bail application of the petitioner, has not appreciated the correct position of law and has not considered the facts and circumstances in right perspective. It is also averred that antecedents of petitioner are clean and he has been roped in a false case. Lastly, it has been averred that petitioner will abide by the conditions of bail, in case he is enlarged on bail.
4. The respondents have resisted the bail application of the petitioner by filing reply thereto. In the reply, the respondents have contended that the petitioner has committed a very heinous offence, which is against the society at large and as such, he does not deserve the concession of bail. It is further contended that petitioner cannot be granted bail both on facts as well as on law.
5. Giving details of the facts of the case, the respondents have submitted that on 04.03.2020, an information was received at Police Post, Narwal, Jammu that the petitioner is sending photographs of vital installations of Indian Territory to ISI of Pakistan through Facebook Messenger and in lieu thereof he is receiving money, thereby posing danger to the security, integrity and sovereignty of the Country. On the basis of this information, the subject FIR came to be registered and the petitioner was taken into custody.
6. During investigation of the case, it was disclosed by the petitioner that one of his neighbour introduced him to one Capt. Jyoti Sharma, whom he added as Facebook friend. The petitioner further disclosed that said Capt. Jyoti Sharma while chatting with him told him that she is on a peace mission at Sudan. Capt. Jyoti Sharma introduced the petitioner to her senior Maj. Amit Sharma, who offered a part time job of sending pictures of vital installations and developmental projects going on in India and in return thereof he was offered money. Accordingly, the petitioner sent pictures of Tarore Bridge at National Highway, AIIMS construction site and information with regard to the distance of said places from Jammu Airport and in lieu thereof he received a sum of Rs.6,000/- towards first installment in his bank account maintained with the State Bank of India. Thereafter, petitioner kept on sending pictures and in return he was getting money.
7. The petitioner is stated to have sent photographs of Samba City, Bari Brahmana, Ujh Bridge, Vijaypur Market, Bahi Nallah, Bari Brahmana Railway Station, Ghagwal Bridge, Pargwal Nallah and besides this prior to the Balakote strike, petitioner is stated to have sent photographs of trains boarded with army personnel at Railway Station, Bari Brahmana. During investigation, 14 suspicious bank transactions were detected, out of which three transactions could not be traced. It was also revealed that the petitioner got money into bank account of his illiterate mother, namely, Neelam Sharma and one of his close friends, namely, Ashwani Kumar. The money is stated to have been received by the petitioner and his relatives/friends from Dubai, Maharashtra etc.
