High Court Is Not To Reflect Upon Merits & Demerits Of Prosecution Case In Matter Of Grant Of Bail To Undertrial: Jammu & Kashmir and Ladakh High Court

The High Court was considering a petition filed on behalf of the petitioner-Khalid Hussain @ Munna, who was one of the two accused persons in a criminal case registered under section 302, 34, 201 of the Ranbir Penal Code, read with sections 4 & 25 Arms Act seeking the grant of bail. The second co-accused died during the pendency of the trial, leaving the petitioner to be the sole undertrial accused in custody.

The Single Bench of Justice Rahul Bharti stated, “In the matter of grant of bail to an accused in a criminal case which is undertrial, this court can have only an overview of the case from the record as compared to the trial court, if approached for bail by an undertrial, which is having a running insight into the evolving state of evidence in the matter of considering whether the case is made out for grant of bail to an undertrial accused in custody. “

“When this Court is to have an overview of the case from the record even in that situation, the constraint is that this Court is not to reflect upon merits and demerits of the Prosecution case, be it by deliberation or default, as any observation drawn on that basis may have an effect, immediate or later, of instilling in the mind of the trial court that the evidence led in the case is meant to be seen from the perspective with which the Higher Court in the matter of granting of bail has appropriated and applied in the matter of granting or refusing the bail and, accordingly, it may have a telling effect on the final judgment to be made by the trial court on the guilt or innocence of an accused undergoing trial in the case”, it added.

Advocate Zainab Shamas Watali represented the Petitioner while Dy. AG Pawan Dev Singh represented the Respondent.

Factual Background

The FIR was registered with respect to the alleged incident of the death of one Mohd. Jabbar @ Ganju. The registration of the said FIR was done at the instance of one Mukhtiyar Ahmed, reckoning himself to be the uncle of the deceased. It was alleged that the deceased was killed by the accused persons bearing a common intention and using a sharp-edged weapon. The registration of the FIR led to the arrest of the petitioner as well as the co-accused.

The motive attributed to the accused for the commission of the offence was that the petitioner had developed a side liking/love for the wife of the deceased. As the deceased was allegedly not willing to leave his wife, it was planned to eliminate the deceased from the scene, which led to the alleged incident.

Reasoning

The Bench explained that the provision of law which vests jurisdiction exercisable on discretion in the matter of grant of bail is under section 483 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 (corresponding to section 43 of the Code of Criminal Procedure, 1973). “In the matter of grant of bail to an accused in a criminal case which is undertrial, this court can have only an overview of the case from the record as compared to the trial court, if approached for bail by an undertrial, which is having a running insight into the evolving state of evidence in the matter of considering whether the case is made out for grant of bail to an undertrial accused in custody”, it held.

As per the Bench, in the matter of grant or refusal of bail to an undertrial in custody in an ongoing criminal case, the Court is obliged to provide a reason as to why the bail is being granted or denied, thereby making the reason an indispensable part of the order in the matter of granting or refusing the bail.

Coming to the facts of the case, the Bench noticed that the petitioner has been in custody for the last seven years, with the coaccused having demised during the pendency of the trial and the entire Prosecution case being built upon circumstantial evidence, which may or may not result in a conviction of the petitioner for the alleged commission of the offence. “The quality of circumstantial evidence in proving the commission of offence beyond a reasonable doubt is, therefore, for the trial court to assess, appraise and actuate”, it added.

It was noticed that the prosecution witnesses who are immediate in terms of creating and casting the narrative to the prosecution case set up against the petitioner and deceased co-accused were examined, and there was no question of said prosecution witnesses being swayed by the petitioner in the event of being enlarged on bail. “The prosecution witnesses, which are yet to be examined, are mostly official witnesses whose testimony is to be drawn from the documents referable to them which includes the Police personnel of Police Station Gharota”, it stated.

“The concern of criminal administration of justice is to ensure that the accused person bearing trial does not flee from the call of justice. This aspect of the case can be well attended to by restricting the scope with respect to the petitioner’s movement upon being enlarged on bail”, it held. The Bench was of the view that the enlargement of the petitioner on bail would have no prejudicial effect on the ongoing criminal trial.

Thus, the Bench granted bail in favour of the petitioner but asked the Trial Court to impose terms and conditions so as to ensure that the petitioner attends the trial in person regularly without indulging in any act of omission or commission to derail the trial.

Cause Title: Khalid Hussain @ Munna v. State/UT (Neutral Citation: 2025:JKLHC-JMU:384)

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