At the bail stage, the court cannot fully consider the impact of hostile witnesses and must consider the gravity of the offence and the circumstances in bail decisions.

JUDGMENT :

Sanjay Dhar, J.

1. Through the medium of instant appeal under Section 21(3) of the National Investigation Agency Act (hereinafter referred to as the NIA Act), appellant has challenged the order dated 12.05.2021 passed by learned Additional Sessions Judge, TADA/POTA (Special Judge Designated under NIA Act), Srinagar, whereby bail application of the appellant has been dismissed.

2. The facts giving rise to the filing of the instant appeal are that on 22.06.2017, while the holy festival of Shabe Qadar was being observed in Jamia Masjid, Nowhatta, the appellant and the co-accused raised inflammatory slogans against the Government of India and they caught hold of deceased Mohammad Ayoub Pandit Dy. S.P. of 3rd Battalion Security, who had been deployed in the area to supervise the manpower for access control at Jamia Masjid on the occasion of Shabe Qadar. The deceased was beaten up, dragged and lynched to death by the mob, of which the appellant was a part. His pistol was also snatched and the dead body was dragged and left at Batagali Nowhatta. Police registered FIR No. 51/2017 for offences under Section 302, 148, 149, 392, 341 RPC read with 13 of Unlawful Activities (Prevention) Act and investigation of the case was set into motion. After conducting investigation of the case, the challan was presented before the trial court against 20 accused. Out of these, 17 accused were arrested and produced before the trial court at the time of presentation of challan whereas one accused Sajad Ahmad Gilkar was killed in an encounter prior to presentation of the challan. Two more accused including appellant herein absconded and they could not be produced before the Court at the time of presentation of the challan.

3. In terms of order dated 12.12.2017, the learned trial court framed charges for the offences mentioned in the charge sheet against 17 accused who had been produced before it at the time of presentation of the challan. During pendency of the trial, the appellant was also arrested and produced before the trial court. Charges against him for offences under Section 302, 148, 392, 341 RPC read with Section 13 ULA(P) Act were framed by the trial court in terms of its order dated 16.05.2019. The appellant/accused pleaded not guilty and trial against him also commenced.

4. It appears that after recording of statements of some of the prosecution witnesses, the appellant/accused moved an application before the trial court for grant of bail on the ground that material prosecution witnesses to the extent of his case have turned hostile and, as such, he deserves to be enlarged on bail. The bail application came to be dismissed by the learned trial court vide its order dated 16.09.2020. The appellant preferred an appeal against the said order before this Court which was registered as CrlA(D) No. 17/2020. Vide order dated 26.02.2021 passed by this Court, the order of learned trial court was set aside and the appellant was given liberty to move a fresh application before the trial court.

5. It appears that the appellant moved another application before the trial court on similar grounds as were projected by him in his earlier bail application and the same has been rejected by the learned trial court vide the impugned order dated 12.05.2021.

6. The primary ground on which the instant appeal has been filed by the appellant is that the witnesses who have deposed about his involvement during investigation of the case, have been examined by the trial court but they have turned hostile and that they have not supported case of the prosecution. It has been urged that even if the remaining prosecution witnesses support the prosecution case and make their statements in line with the statements made by these witnesses during the investigation of the case, still then appellant cannot be convicted. On these grounds, it is contended that the appellant/accused deserves to be enlarged on bail.

7. We have heard learned counsel for the parties and perused record o