Bench of Justice Sanjay Dhar while hearing a bail application has observed that the rejection of a bail application by Sessions Court does not operate as a bar for the High Court in entertaining a similar application under Section 439 Cr. P. C on the same facts and for the same offence.
The Bench was hearing a bail application filed by the petitioner under Section 439 of the Criminal Procedure Code who was involved in FIR No.183/2021 for offences under Section 363, 376 511, 323 IPC and Sections 7/8 of POCSO Act registered by Police Station, Kulgam.
The petitioner had earlier approached the Court of Sessions, Kulgam for grant of bail but the said application was dismissed on the ground that the gravity of offence alleged to have been committed by the accused/petitioner is serious and if the petitioner is released on bail, it will have adverse impact on the society on large especially in the context of woman’s education, her dignity and her empowerment.
While hearing the instant bail application, the Hon’ble Court served notice to the victim through her father in compliance of the guidelines laid down by this Hon’ble Court in case titled Badri Nath vs State of J&K (Decided on 11-12-2020), however no response was filed by the AAG, appearing for the respondents.
While hearing of this petition, question with regard to its maintainability was raised by the respondents. It was contended that successive bail applications are not maintainable and once the Court of first instance has rejected the bail petition of the petitioner, it is not open to him to file another application without any charge in circumstances.
The Court while rejecting the contentions of the respondents observed that if an earlier application was rejected by an inferior court, the superior court can always entertain the successive bail application. The Court referred to the judgment of the Supreme Court in case titled Gurcharan Singh & Ors vs State (Delhi Administration), AIR 1978 SC 179 wherein it was observed that:
“It is significant to note that under Section 397, Cr.P.C of the new Code while the High Court and the Sessions Judge have the concurrent powers of revision, it is expressly provided under sub-section (3) of that section that when an application under that section has been made by any person to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. This is the position explicitly made clear under the new Code with regard to revision when the authorities have concurrent powers. Similar was the position under Section 435(4), Cr.P.C of the old Code with regard to concurrent revision powers of the Sessions Judge and the District Magistrate. Although, under Section 435(1) Cr.P.C of the old Code the High Court, a Sessions Judge or a District Magistrate had concurrent powers of revision, the High Court‘s jurisdiction in revision was left untouched. There is no provision in the new Code excluding the jurisdiction of the High Court in dealing with an application under Section 439(2), Cr.P.C to cancel bail after the Sessions Judge had been moved and an order had been passed by him granting bail. High Court has undoubtedly jurisdiction to entertain the application under Section 439(2), Cr.P.C for cancellation of bail notwithstanding that the Sessions Judge had earlier admitted the appellants to bail. There is, therefore, no force in the submission of Mr Mukherjee to the contrary.”
The Court further observed that that the rejection of a bail application by Sessions Court does not operate as a bar for the High Court in entertaining a similar application under Section 439 Cr. P. C on the same facts and for the same offence.
The Court said that legal position about the matters to be considered for deciding a bail application are required to be noticed, these are as under:
(i) Whether there is any prima facie or reasonable ground to believe that the accused has committed offence;
(ii) Nature and gravity of the charge;
(iii) Severity of punishment in the event of conviction;
(iv) Danger of the accused absconding or fleeing after release on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being tampered with and
(viii) danger of justice being thwarted by grant of bail.
The Court further noted that the foundational facts that would rise presumption under Section 29 of the POCSO against the petitioner are not established in this case and there is no prima facie ground to believe that the petitioner has committed the alleged crime.
The Court said that: “Learned Judge, it seems, instead of applying his judicial mind to the material on record has concentrated more on impact of the alleged crime on the women education. Before considering the impact of a crime on the society, a Court, while deciding a bail application, has to form a prima facie opinion as to the involvement of the applicant in the alleged crime by applying its mind to the material on record. On the reasons stated above the Court allowed the application of the petitioner and enlarged him on bail.”
ISHFAQ AHMAD KHAN Vs UT of J&K
CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE
Bail App. No.92/2021
Mr. Tawheed Ahmad, Advocate appeared for the petitioner
Mr. Irfan Andleeb, Dy. AG vice Ms. Asif Padroo, AAG, appeared for the respondents
439. Special powers of High Court or Court of Session regarding bail.
(1) A High Court or Court of Session may direct-
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in subsection (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub- section;
(b) that any condition imposed by a Magistrate when releasing an person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.