High Court Can Entertain Successive Bail Applications Even Without Change In Circumstances: J&K And Ladakh High Court

The Court was hearing a bail application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking release of the petitioner in connection with an FIR registered at Police Station Soura.

The matter was adjudicated by Justice Sanjay Dhar, who held that a “High Court, being a superior court, has the jurisdiction to entertain and decide a successive bail application even in a case where there is no change of circumstances from the stage when the earlier bail application of an accused is rejected by the inferior criminal court”.

Advocate Mir Umar appeared on behalf of the petitioners, while Faheem Nisar Shah, Government Advocate, represented the respondents.

Background

The petitioner was arraigned as an accused in an FIR registered for the offence under Section 376 of the IPC. The prosecution's case was that a written complaint was lodged alleging that the petitioner had committed rape upon the prosecutrix, who was later found to be pregnant.

During the investigation, the prosecutrix underwent medical examination and age determination. While medical opinion assessed her age at 18 years, witness statements recorded during the investigation indicated that she was above 19 years. Her statement under Section 164 of the CrPC was also recorded, wherein she narrated the sequence of events relating to the alleged incident.

Upon completion of the investigation, a charge sheet was filed, and a charge under Section 376 of the IPC was framed by the trial court. During the course of the trial, the prosecutrix and several other prosecution witnesses were examined. The petitioner’s first and second bail applications were dismissed by the trial court.

After dismissal of the second bail application, further prosecution witnesses were examined, following which the petitioner approached the High Court by way of the present bail application.

Court’s Observation

The J&K And Ladakh High Court, at the outset, reiterated the settled principles governing the grant of bail, noting that while deciding a bail application, the Court is required to consider factors such as the existence of a prima facie case, the nature and gravity of the charge, severity of punishment, possibility of the accused absconding, likelihood of tampering with evidence or influencing witnesses, and the overall interests of justice.

Examining the material on record, the Court observed that although a meticulous analysis of evidence is not warranted at the bail stage, a limited assessment is permissible to determine whether a prima facie case exists. On such an assessment, the Court found prima facie merit in the submissions advanced on behalf of the petitioner.

The Court also took note of the statements of the prosecutrix, her mother and grandfather, and observed that the prosecutrix was a major at the relevant time. It was further observed that the circumstances narrated in the statements, including the delay in disclosure and the surrounding facts, prima facie suggested that the alleged sexual intercourse appeared to be consensual in nature, for the limited purpose of considering bail.

The Court also found fault with the approach adopted by the trial court in rejecting earlier bail applications, noting that the trial court “has not considered the evidence led by the prosecution even for the limited purpose of deciding the bail applications and has mechanically rejected the applications on the ground that the petitioner is involved in a heinous offence”.

The Court also took note that the petitioner had been in custody for about two years and that all material prosecution witnesses had already been examined. In such circumstances, the Court found the apprehension of tampering with witnesses to be minimal.

On the issue of maintainability of successive bail applications, the Court held that the High Court, being a superior court, has the jurisdiction to entertain and decide a successive bail application even in cases where there is no change in circumstances from the stage when earlier bail applications were rejected by the trial court.

Thus, the Bench held that “there is no bar to this Court to grant bail to the petitioner merely because on earlier two occasions his bail application has been dismissed by the learned trial court”.

Conclusion

The J&K and Ladakh High Court allowed the bail application and directed that the petitioner be released on bail subject to conditions, including furnishing of personal bond and surety, regular appearance before the trial court, restriction on leaving the territorial limits of the Union Territory of Jammu & Kashmir without permission, and a prohibition on tampering with prosecution witnesses.

The Court clarified that the observations made in the order were confined solely to the decision of the bail application and would not be construed as an expression of opinion on the merits of the case.

Case Title: Basharat Ahmad Bhat v. Union Territory of Jammu & Kashmir

Appearances

Petitioner: Mir Umar, Advocate

Respondent: Faheem Nisar Shah, Government Advocate

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