The court held that an approver can be granted bail before trial completion under exceptional circumstances, interpreting Section 306(4)(b) in alignment with Article 21 of the Constitution.

JUDGMENT :

1) The petitioner, through the medium of present petition, has invoked jurisdiction of this Court under Section 482 of the Cr. P. C for challenging vires of Section 306 (4)(b) of the Code of Criminal Procedure and for grant of bail in a case arising out of FIR No. 42/2020 for offences under Section 302, 364, 201, 436, 182 of IPC and Section 7/25 Indian Arms Act registered with Police Station, Herpora Shopian, which is stated to be pending trial before the Court of Principal Sessions Judge, Shopian.

2) During the course of hearing, learned counsel for the petitioner submitted that he would confine this petition to the prayer relating to grant of bail and that he would give up the challenge to the vires of the provisions contained in Section 306 (4)(b) of the Cr. P. C.

3) The facts leading to the filing of this petition are that on 18.07.2020, a complaint was received by Police Station, Herpora, Shopian, from Major Kush, Adjutant-62 RR, to the effect that he had received information with regard to hiding of unknown terrorists in Village Amshipora, as a consequence whereof, on 17.07.2020, a cordon and search operation was launched during which three unidentified hardcore terrorists got neutralized. It was also informed that two pistol with two magazines, four empty pistol cartridges, 15 live cartridges and 15 empty cartridges of AK series weapon and other objectionable items were recovered from the site of encounter. On the basis of this information, police registered FIR No.42/2020 for offences under Section 307 IPC, 7/27 Indian Arms Act and 16 ULA(P) Act and started investigation of the case.

4) During investigation of the case, three unidentified dead bodies were taken into possession by the police for conducting their medical examination and DNA profiling. As per the postmortem report, the cause of death of these three unidentified persons was shown to be multiple firearm injuries leading to hemorrhagic shock and cardio respiratory arrest. Since the deceased persons could not be identified, as such, a wireless message was flashed to all SHOs of the Country so as to inform the family members of the missing persons in their respective jurisdictions.

5) On 10.08.2020, a signal was received from I/C PP Peeri Rajouri, whereby an information was received that three persons, namely, Abrar Ahmad S/o Bagha Khan, Abrar Ahmad S/o Haji Mohammad Yousuf and Imtiyaz S/o Sabir Hussain, had gone to Kashmir to work as labourers but their whereabouts are not known to their family members. The Investigating Agency collected the DNA samples of the family members of the missing persons of District Rajouri and along with the said samples, DNA samples of three deceased persons were sent to CFSL, Chandigarh, for analysis. Upon receipt of the report of the CFSL, Chandigarh, the deceased persons were identified as the above named three missing persons of District Rajouri.

6) During the course of investigation, it was found that the above named three persons were killed by the main accused, namely, Captain Bopinder Singh @Major Bashir Khan, of 62-RR, and involvement of two more persons, namely, Tabish Nazir and Bilal Ahmad Lone (petitioner herein) was also established. It was also found that the above named three deceased persons did not have any links with any terrorist organization. Accordingly, after investigation of the case, offences under Section 302, 364, 201, 436, 120-B, 182 IPC and Section 7/25 Indian Arms Act were found established against the aforenamed three accused persons including the petitioner herein.

7) It appears that during investigation of the case, accused Tabish Nazir as well as the petitioner herein were arrested on 28.09.2020. Accused Captain Bopinder Singh @Major Bashir Khan was detained by the Army Authorities for facing trial in Court of Enquiry. The said accused was being tried by the General Court Martial.

8) It appears that the petitioner herein consented to become an approver and, as such, in terms of order dated 14.12