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IN THE HIGH COURT OF JAMMU AND KASHMIR AT Jammu
G.A. Kuchhai, J.
Mohinder Singh - Appellant
Versus
State - Respondent
B.A. No. 51/1985
Decided On : 09 April, 1985
BAIL - SECTION 498 CR. P. C. - SECTIONS 363/342 AND 377 R. P. C. - COURT DISCUSSES THE INTERPRETATION OF SECTION 498 CR. P. C. ALONG WITH SECTION 497(1) CR. P. C. AND HOW IT INFLUENCED THE COURT'S DECISION TO GRANT BAIL TO THE ACCUSED.
Fact of the Case:
THE ACCUSED WAS ARRESTED FOR ALLEGEDLY COMMITTING SODOMY ON A 10-YEAR-OLD BOY. THE PROSECUTION ARGUED THAT THE OFFENSE WAS HEINOUS AND CARRIED A PUNISHMENT OF 10 YEARS OR LIFE IMPRISONMENT, AND THEREFORE BAIL SHOULD BE DENIED. THE ACCUSED ARGUED THAT THE PROSECUTION'S CASE WAS BASED ON CONJECTURE AND THAT HE SHOULD BE GRANTED BAIL.
Finding of the Court:
THE COURT HELD THAT THE PROVISIONS OF SECTION 498 CR. P. C. GIVE THE COURT UNFETTERED DISCRETION TO GRANT BAIL, EVEN IN CASES INVOLVING OFFENSES PUNISHABLE WITH LIFE IMPRISONMENT. HOWEVER, THE COURT ALSO HELD THAT THE PROVISIONS OF SECTION 497(1) CR. P. C. MUST BE CONSIDERED WHEN EXERCISING THIS DISCRETION. THE COURT FOUND THAT THE OFFENSE ALLEGED AGAINST THE ACCUSED DID NOT FALL WITHIN THE CATEGORY OF OFFENSES FOR WHICH BAIL IS GENERALLY DENIED UNDER SECTION 497(1) CR. P. C.
Issues: 1. WHETHER THE COURT HAS THE DISCRETION TO GRANT BAIL IN CASES INVOLVING OFFENSES PUNISHABLE WITH LIFE IMPRISONMENT. 2. WHETHER THE OFFENSE ALLEGED AGAINST THE ACCUSED FALLS WITHIN THE CATEGORY OF OFFENSES FOR WHICH BAIL IS GENERALLY DENIED UNDER SECTION 497(1) CR. P. C.
Ratio Decidendi: THE COURT HELD THAT THE PROVISIONS OF SECTION 498 CR. P. C. GIVE THE COURT UNFETTERED DISCRETION TO GRANT BAIL, EVEN IN CASES INVOLVING OFFENSES PUNISHABLE WITH LIFE IMPRISONMENT. HOWEVER, THE COURT ALSO HELD THAT THE PROVISIONS OF SECTION 497(1) CR. P. C. MUST BE CONSIDERED WHEN EXERCISING THIS DISCRETION. THE COURT FOUND THAT THE OFFENSE ALLEGED AGAINST THE ACCUSED DID NOT FALL WITHIN THE CATEGORY OF OFFENSES FOR WHICH BAIL IS GENERALLY DENIED UNDER SECTION 497(1) CR. P. C.
Final Decision: THE COURT GRANTED BAIL TO THE ACCUSED.
Certainly. Here are the key points derived from the provided legal document:
The court has the discretion to grant bail in cases involving offenses punishable with life imprisonment, but this discretion must be exercised in accordance with the provisions of Section 497(1) of the Criminal Procedure Code (Cr. P. C.) (!) (!) .
Section 498 Cr. P. C. explicitly grants the court the authority to admit any person to bail regardless of the offense or punishment, but this power must be balanced with the considerations outlined in Section 497(1), particularly the grounds for denying bail in serious offenses (!) (!) .
The provisions of Section 497(1) specify that bail should generally not be granted if there are reasonable grounds to believe the accused committed an offense punishable with death or imprisonment for life, unless certain exceptions apply (e.g., minors, women, sick, or infirm persons) (!) .
The distinction between offenses punishable with death or life imprisonment and those punishable with lesser terms (such as 10 years) is crucial. The latter may warrant a different approach to bail considerations, emphasizing that each case should be evaluated on its individual merits (!) .
The primary considerations for granting bail include whether the accused is likely to abscond, tamper with witnesses, or otherwise obstruct justice. The gravity of the offense alone does not automatically preclude bail if there are no specific reasons to believe the accused will flee or interfere with the investigation (!) (!) .
The court emphasized that bail is a rule rather than an exception, and the policy favors releasing accused persons on bail unless there are strong reasons to believe they pose a flight risk or will tamper with evidence (!) (!) .
In this specific case, the court granted bail to the accused after considering the facts, the nature of the offense, the absence of evidence indicating a likelihood of absconding or tampering, and the principle that pre-trial detention should not be used as punishment (!) .
The bail was conditioned on the accused providing a security deposit, executing a personal recognition bond, and adhering to restrictions such as not leaving the jurisdiction without prior permission from the investigating authorities (!) .
The court noted a procedural lapse where the accused was not remanded to judicial custody as ordered, and directed an inquiry into why the court's order was not complied with, emphasizing the importance of adherence to court directives (!) .
Overall, the decision underscores that the exercise of bail discretion involves balancing the seriousness of the offense with the individual's likelihood to cooperate with justice and the absence of risk factors such as flight or witness tampering.
2. The brief case for the prosecution is that on 26-3-1985 when the complainant was not in his house, his son Vishal Sharma aged 10, was going for patch work on his shirt to a tailor, the accused came across him following on a scooter, The accused is alleged to have offered a lift to the P.W. Vishal to the shop of patch worker but forcibly swayed the scooter towards Nanak Nagar and forced the body inside a room on the bank of nallah where the said PW was given a beating and made to smell piosonous substance as a result of which the PW alleged victim got unconscious and during unconsciousness of the boy carnal intercourse against the law of nature was committed on him. the boy gaining consciousness after about one and half an hour, opened the door of the room and came to his house weeping and revealed the entire story to the complainant that the accused had threatened him if he reveals the matter he will be done to death. This information by the complainant was lodged before the Police Station Gandhi-nagar, Jammu on 27-3-1985 and a case under section 363/342 and 377 RPC was registered and the investigation started. The accused was taken into custody. It appears that a bail application in the first instance was moved before a Duty Magistrate, Jammu, who rejected the same vide his order dated 1-4-1985.
3. The petitioner moved this Bail application on 1-4-1985 before another Bench of this Court and on the very day, Government Advocate Sh. D. S. Parihar appears to have accepted notice and filed his objections on 2-4-1985, when at the request of counsel for the petitioner, the accused was directed to be transferred to the Judicial lock-up, The matter, however, came before this court on 4-4-1985 when Govt. Advocate Sh. D.S. Parihar asked for an adjournment to file additional objections which was granted. Meanwhile Govt. Advocate Shri Parihar was asked to see that the accused is transferred to judicial lock-up. The additional objections were filed on 5-4-1985 to which counter affidavit was filed on behalf of the petitioner, when arguments of Mr. MH Beg learned counsel on behalf of the accused-petitioner were heard. Mr. TS Thakur Advocate, on the side of prosecution appeared and filed his power of attorney on behalf of the complainant and sought time to file further objections. The objections have been filed by Mr. T.S. Thakur along with three affidavits to which again the accused has filed counter.
4. The grounds by the petitioner for bail are : that he is a peaceful citizen and has been involved in the case hatching a conspiracy as the Police wanted to extort money from him in connection with a theft case in his shop but he having refused to grease the palm of the Police therefore, the introduction of offence against him. That the alleged victim has also been procured for the purpose of implicating the petitioner-accused. That certain members of Shiv Sena have pressurized and influenced the court below to reject the bail as the accused belonged to a particular community.
5. The initial and additional objections by the State counsel simply mention that the accused having committed sodomy on a boy of 10 years is guilty of henious offence which is non-bailable carrying 10 years and life imprisonment. That the alleged act of accused has created sensational threat to every member of the society, therefore, the discretion in favour of the accused is not warranted.
6. In the additional objections, the Govt. advocate has referred to United Nations Declaration of the Rights of the Child, therefore, for purposes of protection to children, the bail should be rejected. That threats are pouring in from the accused side to the complainant and the social workers extending help to complainant party; that the accuse
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