1. This is an application for bail under Section 498, Cr.P.C. The petitioners have been committed to the Court of Session at Baramulla by the Judicial Magistrate Kupwara to stand their trial under Section 302/34, R. P. C. for the murder or one, Lassi Mir, deceased, There is no eyewitness of the occurrence. The case rests solely on circumstantial evidence. The important circumstances relied on by the prosecution are: firstly that some hairstrands worn on his head by the accused, Rasul Sheikh, were found nearabout the dead body: and, secondly that some shoe prints of the deceased and the other two accused persons, Ahmad Sheikh and Khaliq Sheikh were noticed at and near the spot where the deceased was lying dead. For proof of these circumstances the prosecution proposes to examine the Forensic Experts. The Courts below have rejected the request of the petitioners for bail holding that there was prima facie evidence to connect them with the crime.
2. Appearing for the petitioners, Mr. Beg argued that the circumstances relied on by the prosecution were too refined and the evidence bearing on the same being too feable to justify the detention of the petitioners in custody pending trial, particularly so, because their continued detention will gravely prejudice their defence and, as such, he argued further, this was a fit case where this Court should exercise its powers under Section 498, Cr. P. C, which, he added, were very wide. In reply the learned Additional Advocate General argued that it was too early to say that the circumstances relied on by the prosecution and the evidence bearing on the same were weak or undependable: and, in any case, the order of commitment implied that there were reasonable grounds for believing that the accused were guilty of the offence with which they were charged and, as such, bail could not be appropriately granted to the accused by reason of Section 497 (1) which, lie further argued, controlled Section 498, Cr, P. C.
3. In Jawahar Bania v. State, 1973; J. & K, LR 74 it was held by this Courtj that the discretion to grant bail given to the High Court and the Court of Session under Section 498, Cr.P.C. is not fettered in! terms by the restrictions contained in Section 497 (1) but, on principle, these restrictions should equally govern the exercise of the discretion by them under Section 498,' Cr.P.C. Accordingly if there are 'reasonable grounds' for believing that a person is guilty of an offence punishable with death or trans-' portation for life, the High Court and the! Court of Session will not, except in special circumstances, .grant bail to such person. Wether there are reasonable grounds for believing that a person is guilty of such offence depends on what evidence is offered by the prosecution to prove the charge against him. In order to come to a conclusion that a person is guilty, the Court must consider the nature and the character of the evidence against him. If it finds that there is positive evidence which, if unrebutted, might lead to the conclusion that the charge against him stands proved, it can justifiably hold that there are reasonable grounds for believing that he is guilty.
4. The inquiry into cases based on police report tribal by a Court of Session is governed by Section 207(a) Cr.P.C. In accordance with Sub-section (7) of the said section a case is committed to the Court of Session where, upon consideration of the evidence and other circumstances, 'the Magistrate is of the opinion that the accused should be committed for trial,' Alongside the Magistrate is required to frame a charge declaring with what offence the accused is charged. The order of commitment therefore implies that in the opinion of the Magistrate the accused is prima facie guilty of the offence with which he is charged. It is true that a Magistrate will not commit a person for trial except on reasonable grounds but what he believes to be reasonable may not sound reasonable to the Sessions Judge or the High Court. Could it be the intention of law that the Sessions Judge and the High Court will be still bound by the opinion of the Magistrate and refuse to grant bail merely on the ground that there is an order of commitment? I am clearly of the opinion that this could not be and is not the intention of law. The order of commitment does not by itself supply to the Sessions-Judge or to the High Court reasonable ground for believing that the person so committed is prima facie guilty of the offence with which he is charged. The factum of such commitment would not, therefore, preclude the Sessions Judge or the High Court from granting bail where it finds that there are reasonable grounds for believing that the accused is not guilty of the offence with which he is charged, A similar view was taken in case Nisar Ali v. Abdul Hamid, 157 Ind Cas 286 : (36 Cri LJ 1141 = AIR 1935 Pesh 101) and it was observed:
We cannot support the view that because the factum of commitment implies that (he City Magistrate had sufficient grounds for committing the accused, it necessarily gave the third Additional Sessions Judge reasonable grounds for believing that he has been guilty of the offence charged. It frequently happens in cases of violence that persons upon opposite sides are prosecuted for offences triable by a Court of Session and that the two prosecution stories are mutually destructive of each other, yet in such cases if the unrebutted evidence, in each case be sufficient to afford 'prima facie' proof of the allegations made, it may be the duty of the Magistrate carrying out the judicial enquiry to commit both sets of accused for trial. In such cases he cannot possibly believe both stories and it is difficult to affirm that there are reasonable grounds for believing both stories. Again, there is no doubt that when a person is convicted of an offence punishable with death or transportation for life and appeals the appellate Court is empowered to admit him to bail pending decision of the appeal, and therefore if Section 497, Criminal P. C. does apply to the Appellate Court in such a case, we must come to the conclusion that the conviction by a lower Court does not necessarily in itself give the appellate Court reasonable grounds for believing that the accused appellant is guilty.
Following this case in Newad Ram v. Kishan Mr. Ranawat J. observed:
It cannot therefore be said that the learned Sessions Judge was bound by the opinion of the Committing Magistrate that there was a 'prima facie' case against the accused under Section 302, I.P.C. It was open to the Court of Session to examine the evidence on record and to come to its own conclusion regarding the fact whether there was or was not reasonable ground to believe that the accused had committed an offence punishable with death or transportation for life.
5. The real question is whether there are reasonable grounds for believing that the petitioners are guilty of the offence of murder. The Clouts below have taken the view that this is so. The committing Court could not take a contrary view when in its opinion there was sufficient ground for committing the accused for trial. The learned Sessions Judge has declined to dilate on the argument directed against the prosecution evidence for fear that it might prejudice one party or the other and observed in a general manner that there is prima facie evidence in support of the charge. A little elaboration is what was desirable, nay needed to understand his mind. This is missing. His judgment is not, therefore, of much help in the matter. Viewing the matter for myself, I find that the case against the petitioners is founded mainly on the expert evidence of the Forensic Experts. Expert evidence is not as good as any other evidence. It is a weak kind of evidence. The case against the petitioners would wax or wane depending on how the experts, who have not been examined so far, behave at the trial, To this, may be added the fact that the circumstances, to which they might testify, are not wholly inexplicable. Much therefore depends on what comes on record at the trial. To say that there are reasonable grounds for believing that the petitioners are guilty of murder may therefore look unsafe and if, I may say so, unreasonable too. The fact therefore that they are charged with an offence under Section 302, R. P. C. should not therefore stand in their way to be admitted to bail.
6. In the result I accept this application and hereby direct that the petitioner be released from custody on their furnishing bail in a sum of Rs. 10,000/- with two sureties of like amount each to the satisfaction of the District and Sessions Judge Baramulla.