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Abdul Majeed Jildsaz and ors. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1981CriLJ924
AppellantAbdul Majeed Jildsaz and ors.
RespondentThe State
Cases ReferredJawaher Barua v. State
Excerpt:
- .....section 497-b was added to the code with a view to curtailing the powers of courts in granting bail for offences under certain sections of the ranbir penal code mentioned in the section itself. section 497-b, for the sake of ready reference is reproduced as below:497-b. special provisions regarding bail. - notwithstanding anything contained in this code, no person accused of an offence punishable under sections 148, 152, 153-a, 295, 295-a, 296, 297, 298, 435 or 505 of the state ranbir penal code shall be released on bail unless- (a) the prosecution has been given an opportunity to oppose the application for such release:(b) the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence; and(c) the order of the court has, on a reference.....
Judgment:
ORDER

I.K. Kotwal, J.

1. The petitioners, Abdul Majeed Jildsaz, Abdul Maiid Nashti and Mahmmad Ramzan Bhat have been arrested by the police in FIR No. 495 of 1980, Police Station Anantnag, for having committed offences under Sections 307. 148, 336, 332, 152, 153-A and 149, R. P.C. read with Section 13(1) of the Unlawful Activities Act. The police have also put up a challan against them in the Court of Special Judge (Sessions Judge) Anantnag, as some of the offences, viz., offences under Sections 148, 152 and 153-A are exclusively triable by him. An application for bail was moved on behalf of the petitioners before the Special Judge, but the same has been dismissed by him on the ground that Section 497-B of the Cr. P.C. was a bar against granting them bail, as in his opinion, there are reasonable grounds for believing that they are prima facie guilty of the aforesaid offences. They have now moved This court in a revision petition against the aforesaid order.

2. Appearing for the petitioners, Mr. Hagroo has raised three contentions in support of the application. These are:

(i) on the prosecution's own showing the alleged offences having been committed on 18-8-1980, provisions of Section 497-B, which was for the first time introduced vide Ordinance No. 1 of 1980, were not applicable to the petitioners' case, as this Ordinance came into force on 22-8-1980.

(ii) even if these provisions were applicable, the evidence collected by the police during investigation did not disclose a prima facie case against the petitioners; and

(iii) in any case powers of the High Court to grant bail under Section 498, Cr. P.C. were not circumscribed by the provisions of Section 497-B.

3. Keeping in view the deteriorating law and order situation in the State; Governor; in exercise of the powers vested in him under Section 91 of the Constitution of Jammu and Kashmir, promulgated an ordinance, being Ordinance No. 1 of 1980. This Ordinance was published in Government Gazette dated 22-9-1980, and was to come into force at once. By virtue of the Ordinance, the sentence orginally provided for various offences under the Ranbir Penal Code, including those under Sections 148, 152 and 153-A, R. P, C, with which we are presently concerned, was .enhanced. Some amendments were also made to the Cr. P.C. and some offences, including those under Sections 148, 152 and 153-A, R. P.C. which were originally triable by Magistrates under Schedule II to the Code, were made exclusively triable by Special Judge. Not only that, some offences which were classified as bailable under Schedule II. as it originally stood, were made non-bailable, offences under Sections 148 and 152, R. P.C. which were bailable even before the Ordinance came into force, however, remained bailable, Among others. Section 497-B was added to the Code with a view to curtailing the powers of courts in granting bail for offences under certain sections of the Ranbir Penal Code mentioned in the section itself. Section 497-B, for the sake of ready reference is reproduced as below:

497-B. Special provisions regarding bail. - Notwithstanding anything contained in this Code, no person accused of an offence punishable under Sections 148, 152, 153-A, 295, 295-A, 296, 297, 298, 435 or 505 of the State Ranbir Penal Code shall be released on bail unless-

(a) the prosecution has been given an opportunity to oppose the application for such release:

(b) the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence; and

(c) the order of the court has, on a reference made by it, been confirmed by the High Court after giving the prosecution an opportunity of being heard.

4. Under the Cr. P.C. before it came to be amended by Ordinance No. 1 of 1980, powers to grant bail to a person accused of an offence, which was non-bailable in terms of Schedule II, were governed by Sections 497 and 498, out of which Section 498 dealt with the powers of the High Court and Court of Session alone. Whereas bail could be claimed as of right in terms of Section 496 where the offence committed was a bailable one, granting bail to a person accused of a non-bailable offence was, left to the discretion of the court. Except in a case where a person accused of an offence punishable with death or imprisonment for life, was either under the age of sixteen years, or a woman, or otherwise sick or infirm, bail could not be granted in his favour, unless there were reasonable grounds for believing that he was not guilty of an offence punishable with death or imprisonment for life. Granting of bail for other non-bailable offences would be a rule, and refusing the same an exception. There was a cleavage in judicial opinion in regard to the extent of the powers of a High Court or a Court of Session in granting bail to a person accused of a non-bailable offence under Section 498. One view was that the powers of a High Court or a Court of Session to grant bail in such a case were not limited by the provisions of Section 497, whereas the other view was that these powers were so limited. This Court however, in Jawaher Barua v. State 1973 J & KLR 74 took the view that even though powers of a High Court or a Court of Session to grant bail under Section 498 were not fettered by the restrictions contained in Section 497, yet, these powers had to be exercised consistently with the provisions of Section 497, for different standards could not be applied at different levels of judicial hierarchy.

5. Section. 497-B. as appears from its plain language, in a way brought some other offences, namely, offences under Sections 148, 152, 153-A, 295. 295-A, 296, 297, 298, 435 and 505. R. P.C. in pari materia with offences punishable with death or imprisonment for life, in so far as granting of bail was concerned, in that, no court could grant bail to a person accused of any such offence, unless it was satisfied that there were reasonable grounds for believing that the accused was not guilty of such offence. Besides, it also enjoined upon the courts not to grant bail in such cases unless the prosecution had been given an opportunity to oppose the application. Final authority to grant bail was conferred upon the High Court alone, and a Special Judge who was also inclined to grant bail had to make a reference to the High Court, which again on giving an opportunity to the prosecution of being heard, would finally grant or refuse the ball.

6. The opening expression used in Section 497-B: 'notwithstanding anything contained in this Code' leaves no room for doubt that the section is quite sweeping in character and includes in its ambit the provisions contained in Section 498 as well. Consequently even the High Court cannot grant bail to a person accused of any offence mentioned in the section, unless it is satisfied that there are reasonable grounds for believing that he is not guilty of such an offence. There is, however, an apparent contradiction in the Ordinance. On the one hand it makes the offences mentioned in Section 497-B bailable on certain conditions only, and on the other hand it allows some of them. viz. offences under Sections 148 and 152. R. P.C. to remain bailable in terms of Schedule II. The Ordinance would have been more appropriately worded, in case it also amended Schedule II by making offences under Sections 148 and 152 also non-bailable. This would have unmistakably reflected the real intention behind amending the provisions of the Code of Criminal Procedure. Even so. this would not help the petitioners, for they are also charged for an offence punishable under Section 153-A. R. P.C. which undoubtedly is non-bailable under Schedule II also. Furthermore, if Section 497-B could have the effect of overriding the provisions of Section 498, then pari ratione, it could have the effect of ever riding the provisions of Section 496 as. well.

7. The Ordinance is clearly substantive in character in so far as it makes amendments to the provisions of the Ranbir Penal Code, but is procedural in character in so far as it makes amendments to the provisions of the Code of Criminal Procedure. That a statute can be partly substantive and partly procedural in character, cannot be disputed. Equally well settled is the principle that procedural law is retrospective in operation and no litigant has a vested right in procedure. There is, therefore, no force in the contention of Mr. Hagroo that the Ordinance has affected the substantive rights of the petitioners, as such, it cannot be retroactive in its operation. Whether or not the petitioners were entitled to bail was a question purely relating to procedure. Even if the petitioners could claim bail as of right when the offence was committed, bail could be still refused to them in terms of Section 497-B, provided they had not been released on bail before the Ordinance came into force. Neither the Special Judge, nor the High Court, could release the petitioners on bail, unless all the requirements of Section 497-B were fulfilled.

8. Turning now to the other argument of Mr. Hagroo that the evidence-recorded by the police during investigation clearly shows that there are reasonable grounds for believing that the-petitioners are not guilty of any offence with which they have been charged I may say, is not tenable. Without discussing in detail the evidence recorded by the Police. I cannot help observing that unless some more material in. favour of the petitioners is brought on the record during the course of the trial, the statements of the witnesses recorded by the Police under Section 161, Cr. P.C. do not warrant a conclusion, even prima facie, that there are reasonable grounds for believing that the petitioners are not guilty of the offences charged.

9. I find no merit in this application, which is dismissed accordingly. The petitioners will be, however, at liberty to make a fresh application after some evidence has been recorded by the Special Judge during the trial.


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