Mufti Baha-Ud-Din Farooqi, Actg. C.J.
1. A case under Sections 380/120-B/201 and 204 R.P.C. has been registered against the petitioners at the Police Station Badgam. The investigation is still in progress, although much ground has been already covered. The first petitioner is employed as a clerk in the Judicial Department. At the time of his arrest he was posted as a clerk in the Court of the District and Sessions Judge, Badgam. The other petitioners were under-trials in that court in a pending case under Section 366/376 R.P.C. The allegation against them is that the first petitioner entered into a criminal conspiracy with other three petitioners in order to cause the disappearance of the file of the aforesaid case and that in furtherance of such conspiracy he clandestinely removed the file from the court. During the course of investigation, a portion of the file has been recovered from his possession along with some more files and books pertaining to Baramulla Court where he was previously posted. The investigation has also revealed that the petitioners had destroyed major portion of the file before the recovery was made. The learned Chief Judicial Magistrate, Badgam, has refused to grant the bail observing as under:
In view of such evidence they shall have this deep rooted belief that in every probability the conviction in their case is going to entail. With this apprehension they are sure to escape the trial. In this context there are strong grounds with the prosecution for believing that the accused persons in this case would not appear to take their trial if admitted to bail. The fact that the accused are some man of status and for that they have deep roots in their native soil is no security that they shall not abscond where they come to believe that the accusation against them is serious, a nature of the evidence in support of the accusation is also grave.
The argument of the learned Counsel for the petitioners is that the observations are premature and uncalled for. He urged that the apprehensions of the prosecution that the petitioners might, if released, jump the bail are misconceived. There is no material on the record to lend credence to such apprehensions. The accused have their roots in the soil and they would not like to leave their hearth and home and live in wilderness merely because the case is of a serious nature and then, for aught we know, what the result of the trial would be. The petitioners are ready and willing to offer any kind of security that the court might like to have from them in order to secure their presence during the course of the trial.
On the other hand, the learned Advocate General urged that even assuming that there was no likelihood of the petitioners absconding, but that is not the only consideration which should weigh with this court in the matter. He urged that in deciding whether the bail should be granted or not, the court has to take into account, the nature of the offence, and if the offence be of a serious nature, the court should refuse to grant bail, even though it may have very wide powers under Section 498, Cr. P.C. He contended that on the available material, there are reasonable grounds to believe that the petitioners have acted in concert and removed the file and thereafter were able to destroy it for the most part, before the machinery of law could come into motion. Considering the nature of the offence, which would imperceptibly impair and undermine the sanctity of the courts, it is not a case where discretion vested in the court under Section 498, Cr. P.C. should be exercised in favour of the petitioners. In support of his argument he relied upon a decision of the Supreme Court in the State v. Jagjit Singh : 3SCR622 .
2. In the case of Jagjit Singh (supra) the accused was an army officer who was prosecuted along with two others for conspiracy (120-B.R.P.C.) and also under Sections 3 and 5 of the Indian Official Secrets Act. The High Court had granted bail. On appeal, the Supreme Court set aside the order of the High Court granting bail, inter alia, holding:
(1) That the only reasons which the High Court gave for granting bail in this case were that the other two persons had been granted bail, that there was no likelihood of the accused absconding, he being well connected and that the trial was likely to take considerable time. These were, however, not the only considerations which should have weighed with the High Court if it had considered the matter as relating to a non-bailable offence under Section 3.
(2) That among other considerations, which a court has to take into account in deciding whether bail should be granted in a non-bailable offence, was the nature of the offence; and if the offence was of a kind in which bail should not be granted considering its seriousness, the court should refuse bail even though it has very wide powers under Section 498 of the Code of Criminal Procedure.
(3) That as the case against the accused was in relation to the military affairs of the Government and prima facie the accused if convicted, would be liable up to fourteen years' imprisonment under Section 3, in such circumstances considering the nature of the offence, it was not a case where discretion which, undoubtedly, vested in the court under Section 498 of the Code of Criminal Procedure, should have been exercised in favour of the accused.
The principle of this case applies with equal force in the present case. Here the case against the petitioners is that they entered into a criminal conspiracy to cause the disappearance of the judicial fiie in a pending criminal case against the petitioners Nos. 2 to 4 and that in furtherance of this conspiracy the petitioner No. 1 secretly removed the file from the court. On the available material there are reasonable grounds to presume that they have committed the offence. The offence is more heinous than any other heinous offence. Such acts are bound to shake the confidence of the people in the courts. The Judicial records are well known for their sanctity, and if they lose that sanctity, it would imperil the existence of the administration of justice through courts and all that the courts stand for. Considering the nature of the act, it is not a case in which the discretion under Section 498, Cr, P.C. should be exercised in favour of the petitioners, even if it were assumed that they are not likely to jump the bail.
3. The result, therefore, is that the petition fails and is hereby dismissed. The petitioners have been enlarged on ad interim bail. Their bail bonds are cancelled. They are remanded to the judicial custody. They shall be produced for further orders before the Chief Judicial Magistrate, Badgam, after one week. I am informed at the bar that the petitioners Nos. 2 to 4 are required to attend the court of the Sessions Judge, Badgam, on 4th of August, 1980, in connection with some other case pending against them in that court. The Superintendent Central Jail, Srinagar, is directed to produce them before the Sessions Judge, Bagdam, on the said date.
4. This order will not, however, preclude the trial court from considering the question of bail during the course of the trial, if so advised.